Uk Nationals As Well As Eu Citizenship: References To The European Courtroom Of Jurist As Well As The February 2018 Decisions Of The District Court, Amsterdam

Professor Anthony Arnull, University of Birmingham, UK

The conclusion of 7 Feb 2018

The interim decision of the District Court, Amsterdam, of 7 Feb 2018 caused quite a stir alongside Brexit-watchers. The instance concerned promised non only to last the starting fourth dimension reference to the Court of Justice on Brexit but also to enhance i of the most fundamental questions posed past times the UK’s conclusion to withdraw from the EU: whether, inwards the absence of an understanding to the contrary, withdrawal would necessarily hateful that UK nationals would lose their European Union citizenship together with the rights that status gave them.

The proceedings had been brought past times 7 claimants. The starting fourth dimension 5 were UK nationals resident inwards the Netherlands. The 6th together with 7th were associations. One, Brexpats, had been established to protect the interests of UK nationals affected past times Brexit. Its claim was found to last inadmissible. The other, CADS, had been established to promote Anglo-Dutch merchandise relations. Influenza A virus subtype H5N1 challenge to the admissibility of its claim was rejected. The defendants were the State of the Netherlands together with the Municipality of Amsterdam. The instance was heard past times Judge F B Bakels, a onetime Vice President of the Netherlands Supreme Court who, it is understood, had chosen to devote a brusque menstruum of fourth dimension before his retirement to hearing starting fourth dimension instance cases.

The claimants were seeking a ruling that, should UK citizens retain European Union citizenship later Brexit, the defendants would honor the attendant rights of the starting fourth dimension 5 claimants. In particular, they asked the courtroom to dominion that the defendants should non concur to implement whatsoever understanding betwixt the UK together with the EU27 which failed to guarantee those rights. Such a ruling may non strictly speaking last necessary, since the withdrawal agreement, every bit an human activity of secondary European Union law, could non alter the rights conferred past times citizenship of the Union, which derive ultimately from the TFEU. In practice, however, a ruling inwards the damage sought mightiness avoid the demand for farther litigation on the point.

Should the withdrawal of the UK from the European Union last found to take away from UK citizens their status every bit citizens of the European Union (as the wording of Article 20(1) TFEU would suggest), the claimants sought an monastic tell requiring the Netherlands to send out an private assessment of the compatibility with the regulation of proportionality of whatsoever conclusion to limit rights deriving from European Union citizenship; ordering the Municipality to give effect to the private assessments carried out; prohibiting the State from insisting that i of the claimants should relinquish her UK nationality; together with ordering the Municipality together with the State to facilitate multiple nationality for a mortal seeking Netherlands nationality inside 2 weeks of the court’s ruling. The claimants argued that these claims required an authoritative ruling on the effect of Article xx TFEU. They had thus drafted a number of questions with a thought to having them referred to the Court of Justice for a preliminary ruling.

The claimants stated that they had all made utilization of the fundamental freedoms to reside together with operate inwards to a greater extent than or less other Member State together with that the incertitude surrounding their hereafter legal seat was already causing them harm. In organising their lives, they had to convey line of piece of work concern human relationship of the distinct possibility that the Netherlands mightiness later Brexit class them every bit tertiary province nationals together with require them to leave of absence without conducting an private assessment of their circumstances. That threat meant that they had to create upwardly one's hear straightaway whether to seek citizenship of the Netherlands. This was an expensive procedure together with mightiness receive got consequences for their right to retain UK nationality together with thus for their continuing right to see the UK. There were also questions most the status of partners who mightiness or mightiness non receive got UK nationality; parents of UK nationality who had children born inwards the Netherlands; together with UK nationals inwards the Netherlands whose operate made it essential for them to proceed to last able to go freely throughout the EU27.

The guess ruled that, inwards monastic tell to assess these claims, it was necessary to institute whether loss of the status of nationality of a Member State automatically resulted inwards loss of citizenship of the Union or whether considerations of fundamental, acquired together with minority rights together with solidarity betwixt European Union citizens mightiness require that outcome to last qualified. He thus announced his intention to submit 2 questions to the Court of Justice:

Whether, inwards the absence of an understanding on the thing inwards the Brexit negotiations, UK withdrawal from the European Union would automatically deprive UK nationals of their status every bit European Union citizens together with of the rights together with freedoms attaching thereto;

If not, whether those rights together with freedoms were bailiwick to whatsoever weather or restrictions.

The parties were given the right to comment on the proposed questions inside a calendar week of the judgment. They were expressly told they could non comment on whatsoever other aspect of the judgment or on the judge’s intention to advert questions to the Court of Justice.

The conclusion of xx Feb 2018

It thus seemed probable that the Court of Justice would last given the chance to dominion on issues of profound significance for the orbit of European Union citizenship together with the course of pedagogy of the Brexit negotiations. However, on xx Feb 2018, Judge Bakels granted the State together with the Municipality permission to appeal to the Court of Appeal, Amsterdam, against his before ruling. The appellants argued that the incertitude of which the claimants were complaining could non last resolved past times the proposed questions because their legal seat depended on the content of the withdrawal agreement. This was non only right because, every bit noted above, the provisions of the TFEU on citizenship volition convey precedence over the damage of the withdrawal agreement. The appellants rejected the claimants’ declaration that they were already suffering impairment together with asserted that at that topographic point was no existent dispute betwixt the parties.

Appearing to receive got a alter of heart, Judge Bakels decided to depart from the normal dominion set downwards past times the Netherlands Code of Civil Procedure that an appeal could last lodged only at the same fourth dimension every bit the terminal judgment. He acknowledged that this did non inwards itself suspend the conclusion to advert to the Court of Justice. However, he observed that it would last opposite to due procedure for a reference to last made at this phase together with decided that this should non straightaway last done. It would last for the Court of Appeal, Amsterdam, to create upwardly one's hear whether a reference should last made and, if so, what questions should last referred.

Challenging reference decisions

There is a considerable torso of instance police push clitoris on the circumstances inwards which a conclusion of a national courtroom to brand a reference to the Court of Justice may last challenged before a superior national court. It may seem surprising that such an appeal is possible. In Joined Cases C-332/92, C-333/92 together with C-335/92, Eurico Italia, for example, the Court of Justice pointed out (para 17) that

‘it has consistently held that it is solely for the national courts before which actions are brought, together with which must send the responsibleness for the subsequent judicial decision, to determine inwards the low-cal of the special features of each instance both the demand for a preliminary ruling inwards monastic tell to enable them to deliver judgment together with the relevance of the questions which they submit to the Court.’

Moreover, the Court made it clear inwards Case 166/73 Rheinmühlen v Einfuhr- und Vorratsstelle Getreide that a national courtroom cannot last deprived of its powerfulness to brand a reference past times the rulings of superior national courts. Indeed, inwards that instance Advocate General Warner argued (at pp. 43-44) that ‘national legislation cannot effectively render for a right of appeal against an monastic tell of a lower Court referring a interrogation to this Court.’ The discretion conferred on lower national courts past times what is straightaway Article 267 TFEU, he said, was exercisable at whatsoever phase of proceedings before them together with could non ‘be fettered past times whatsoever dominion or provision of national law’ (at p. 47).

The thought of Advocate General Warner was non initially followed past times the Court. In Case 146/73 Rheinmuhlen-Düsseldorf (para 3), the Court ruled:

‘in the instance of a courtroom against whose decisions at that topographic point is a judicial remedy nether national law, Article [267] does non preclude a conclusion of such a courtroom referring a interrogation to this Court for a preliminary ruling from remaining bailiwick to the remedies unremarkably available nether national law.’

The Court added: ‘Nevertheless, inwards the interests of clarity together with legal certainty, this Court must abide past times the conclusion to refer, which must receive got its total effect together with so long every bit it has non been revoked.’

In 2008, that approach was substantially modified inwards Case C-210/06 Cartesio. In that case, the Court of Justice declared (paras 95 together with 96):

‘Where rules of national police push clitoris apply which relate to the right of appeal against a conclusion making a reference for a preliminary ruling, together with nether those rules the primary proceedings stay pending before the referring courtroom inwards their entirety, the monastic tell for reference lone beingness the bailiwick of a limited appeal, the autonomous jurisdiction which Article [267 TFEU] confers on the referring courtroom to brand a reference to the Court would last called into question, if – past times varying the monastic tell for reference, past times setting it aside together with past times ordering the referring courtroom to resume the proceedings – the appellate courtroom could forbid the referring courtroom from exercising the right, conferred on it past times the [TFEU], to brand a reference to the Court.

In accordance with Article [267 TFEU], the assessment of the relevance together with necessity of the interrogation referred for a preliminary ruling is, inwards principle, the responsibleness of the referring courtroom alone, bailiwick to the limited verification made past times the Court inwards accordance with the case-law… Thus, it is for the referring courtroom to depict the proper inferences from a judgment delivered on an appeal against its conclusion to advert and, inwards particular, to come upwardly to a conclusion every bit to whether it is appropriate to hold the reference for a preliminary ruling, or to better it or to withdraw it.’

The Court’s ruling inwards Cartesio effectively made judgments of superior courts on the appropriateness of a reference advisory only. That outcome mightiness inwards to a greater extent than or less cases last incompatible with the national courtroom hierarchy. In the Lady & Kid instance (Order of eleven Feb 2010), the Danish Supreme Court thus ruled that references made past times lower Danish courts should no longer last bailiwick to appeal. (See m Broberg together with northward Fenger, Preliminary References to the European Court of Justice (OUP, 2nd ed, 2014) 329-330; m Broberg together with northward Fenger, ‘Preliminary references every bit a right: but for whom? The extent to which preliminary reference decisions tin last bailiwick to appeal’ (2011) 36 European Law Review 276.) Similarly, inwards a conclusion of xxx March 2010, the Belgian Cour de Cassation declared an appeal brought against a reference past times a lower courtroom inadmissible (see K Lenaerts, I Maselis together with K Gutman, European Union Procedural Law (OUP, 2014, 81). The same conclusion was reached past times the Irish Gaelic Supreme Court every bit long agone every bit 1983: come across Campus Oil v Minister for Industry together with Energy [1984] 1 Common Market Law Reports 479; D O’Keeffe, ‘Appeals against an monastic tell to advert nether Article 177 of the EEC Treaty’ (1984) nine European Law Review 87.

It should last noted, however, that Cartesio does non apply unless it is only the conclusion of the lower courtroom to brand a reference that is the bailiwick of an appeal together with where the primary proceedings thus ‘remain pending before the referring courtroom inwards their entirety’ (para 98). Thus, inwards Case C-525/06 Nationale Loterij, the Court held that at that topographic point was no demand to response to a reference made past times a courtroom before which the instance concerned was no longer pending, having been brought inwards its entirety before a higher court. Responsibility for ensuring that the outcome was consistent with the requirements of Union police push clitoris inwards such circumstances belonged to the latter court.

Implications for the Amsterdam proceedings

What are the implications of the instance police push clitoris briefly summarised higher upwardly for the proceedings brought before the District Court, Amsterdam? It volition last noted that no reference has together with so far been made inwards those proceedings. It would thus seem to follow that the declaration that a reference should last made volition demand to last repeated before the Amsterdam Court of Appeal.

The interrogation whether an appeal could last brought against a conclusion of a national courtroom non to brand a reference was considered past times the Danish Supreme Court inwards Lady & Kid. It was held at that topographic point that this remained possible together with that, if the appellate courtroom decided that a reference should last made, that ruling would last binding on the lower court. However, O’Keeffe (above, p103) argues persuasively that ‘[t]he reference inwards a instance where the appellate courtroom finds it necessary should last past times monastic tell of the appellate court, otherwise the discretion of the lower courtroom nether Article [267] is straight violated...’ This appears to receive got been the thought taken past times Judge Bakels inwards his conclusion of xx Feb 2018.

The grounds of appeal seat forrard past times the Netherlands Government are varied. On the key number of the effect of Article xx TFEU, the Government asserts that this provision is acte clair together with rejects the judge’s reasoning on acquired rights. Influenza A virus subtype H5N1 national courtroom mightiness easily conclude that these questions at to the lowest degree should last referred to the Court of Justice, provided it did non convey the declaration of the Netherlands Government that the instance is artificial or contrived.

As the Court explained inwards Case C-62/14 Gauweiler v Deutscher Bundestag (para 25),

‘…questions concerning European Union police push clitoris savour a presumption of relevance. The Court may reject to give a ruling on a interrogation referred past times a national courtroom only where it is quite obvious that the interpretation, or the determination of validity, of a dominion of European Union police push clitoris that is sought bears no relation to the actual facts of the primary activity or its purpose, where the work is hypothetical, or where the Court does non receive got before it the factual or legal cloth necessary to give a useful response to the questions submitted to it…’

This makes it necessary for the national courtroom to ‘give at to the lowest degree to a greater extent than or less explanation’ of why it has chosen the European Union provisions of which it is requesting an interpretation (Case C-370/12 Pringle, para 84).

The claimants inwards the instance nether give-and-take receive got given plausible explanations of the make of ways inwards which the incertitude surrounding their status is causing them direct together with immediate harm. Even if the claims of only i of the claimants were considered credible, that would last plenty to justify a reference to the Court of Justice. In his starting fourth dimension ruling, the guess was satisfied that at that topographic point was inwards the circumstances ‘no interrogation of a hypothetical or notional dispute’. The questions he decided to advert to the Court were based on a detailed exam of the legal background together with included extensive analysis of the instance police push clitoris of the Court. It thus seems unlikely that the Court would reject to give a ruling if it were asked to do so.

It is non clear why Judge Bakels departed from the normal dominion past times permitting an appeal to last brought at the interim phase together with changed his hear most the desirability of a reference. If the instance were none the less to attain the Court of Justice past times means of a reference from either the District Court or the Court of Appeal, it would introduce the Court of Justice with a welcome chance to clarify the orbit of citizenship of the Union. This would enable the Brexit negotiations to proceed on the footing of a right understanding of the police push clitoris together with render a bird of certainty to electrical flow citizens of the Union whose interests are inwards danger of beingness overlooked.

Barnard & Peers: chapter 27

Photo credit: DutchReview

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