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Brexit: in the courts again - February 2018


Two significant Brexit-related court cases were decided last week. On 6 February, the Court of Session in Edinburgh rejected the case on whether Britain could unilaterally withdraw its Article 50 notice. Meanwhile, a court in the Netherlands paved the way for an ECJ decision on whether UK nationals can retain EU citizenship after Brexit.

Article 50 – no going back?

Since the decision to trigger Article 50 of the Treaty on European Union last March, taken somewhat hastily in the view of many Remainers, there has been considerable interest in a case brought by a group of Scottish politicians from the SNP, Labour, Scottish Greens and Liberal Democrats, and backed by The Good Law Project, a campaign group. The claimants petitioned for judicial review of the UK Government's decision, in the hope that the issue of revocability of Article 50 would be referred to the CJEU.

Campaigners argued that once the terms of Brexit have been negotiated, Parliament should have a vote on the proposed deal, which should include the option to reject it and remain in the EU after all. This in turn would depend on whether it is possible for the UK to withdraw the Article 50 notice (without the consent of the EU 27) to halt the Brexit process.

The Government responded that it had no intention of withdrawing the notification under Article 50, whether or not an agreement is reached with the EU.

Lord Doherty agreed with the Government that as there was no intention to revoke Article 50, the question was "hypothetical and academic" and ruled neither he nor the CJEU was required to adjudicate upon it. The Good Law Project is raising funds for a possible appeal.

The EU citizenship issue

By contrast, a court in the Netherlands has agreed to refer questions to the ECJ on whether UK nationals can retain EU citizenship after Brexit (despite opposition from the Dutch government).  A positive outcome for the claimants would be highly significant, as it would potentially allow UK nationals to continue to live and work throughout the EU, irrespective of the eventual deal between the EU and the UK on citizens' rights. UK employers with one or more European offices would also stand to benefit from this outcome as it would make it easier to move British citizen employees around their different EU offices, without the visa and work permit burdens that could otherwise apply post-Brexit.

The case was brought by a number of UK nationals who live/work elsewhere in the EU and two expat organisations – Hear our Voice and the Commercial Anglo-Dutch Society.  They point out that under Article 20 of the Lisbon Treaty, EU citizenship is separate from national citizenship and that, having acquired it, UK nationals should be entitled to retain it, despite the UK's decision to leave the EU.  The claimants are also likely to argue that they have established families and careers in other EU member states in reliance on their EU citizenship – and in the expectation that the benefits of EU citizenship would not be summarily withdrawn in circumstances where they, as individuals, have not done anything wrong.

The likely counterarguments might include:

  • that EU citizenship should be regarded as wholly dependent on being a citizen of an EU member state; and
  • EU citizenship rights depend on certain obligations being met by your nation state of origin, such as agreeing to abide by other fundamental EU Treaty principles and making contributions to the EU budget. 

The question that the Dutch court is expected to put to the ECJ is reported to be: “Does Brexit mean that Britons automatically lose their European citizenship or do they maintain their rights, and if so, under what conditions?

We will keep you posted. 

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