Summary of the Case for the annulment of the proceedings of the EU route and EURATOM Treaty under Article 50 (Brexit)

A Brief History of the Dispute

  • On 23 June 2016, United Kingdom citizens voted in favour of withdrawing their country from the European Union.
  • On 29 March 2017, the Prime Minister of the United Kingdom notified the European Council of the intention of the UK to withdraw from the Union and the European Atomic Energy Community (EURATOM).
  • On 22 May 2017, the Council of the Union adopted, on the basis of the provisions of Article 50 TEU and Article 218 (3) TFEU, the decision authorizing the European Commission to open negotiations with the United Kingdom concerning arrangements for withdrawal.
  • This is the decision challenged before the General Court of the European Union.
  • My clients are 13 British expatriates including Harry Shindler, one of the last veterans of the Second World War.

Who are these clients?

These clients are all British expatriates who were deprived of any vote on the issue of the exit of the United Kingdom from the Euratom Treaty and the European Union, specifically concerning their freedom of movement within the Union. They live in Ireland, the Netherlands, Germany, Italy, Spain, Denmark and France.

In fact, this action is reminiscent of another case directly related to the right to vote and to European citizenship. Three years ago, I pleaded the DELVIGNE case before the Court of Justice of the European Union (Grand Chamber CJEU judgment, C-650/13 of 6 October 2015). This case concerned the voting rights of a European citizen.

All the intervening Member States pleaded inadmissibility on the ground that only States, through national acts, had the competence to regulate the right to vote of their nationals, regardless of the nature of the election, national or European. In a judgment delivered in the Grand Chamber on 6 October 2015, the Court of Justice ruled DELVIGNE’s action admissible on a question of constitutional importance for the European Union, as written by the European Commission. The present SHINDLER case raises, for a second time, a question of constitutional importance with a major impact for European citizenship and the right to vote.

The Procedure

This action seeks to preserve European citizenship acquired prior to the contested decision. It also seeks to promote the equality of European citizens concerning their right to vote on the question of freedom of movement within the EU.

As indicated by the 2014 European Commission Recommendation (2014/53 / EU, OJEU of 1 February 2014), the 2013 Report on Citizenship of the Union (COM 2013/269 final) and the petition of Harry SHINDLER (petition no. 0446/2007) in 2007, the British rule of the “15 Years Rule” (UK law depriving the right to vote in case of domiciliation for more than fifteen years outside the UK) appears contrary to European law and in particular infringes the freedom of movement recognized by the European Treaties.

By an application registered on 21 July 2017, the applicants brought the action for annulment. As of yet, it is the only action for annulment pending before the European court. Therefore, so far, it is the only remedy that can be tried by the European judge before the final exit of the United Kingdom from the EU and EURATOM treaties. This is probably the last chance of success at the judicial level to avoid BREXIT.

On October 16, 2017, the Council of the Union defended the case. He raised an objection of inadmissibility on the ground that only the final agreement could be challenged and that the opening of the negotiations as a preparatory act cannot be challenged since it does not adversely affect the applicants. However, on 30 November 2017, the applicants lodged their observations on the objection of inadmissibility by demonstrating the contrary.

The Court decided to open the oral stage of the proceedings, limited to the admissibility of the action, and to remit the case to an enlarged panel. On 5 July 2018, there was a 2-hour hearing on the interpretation of Article 50 TEU and its consequences for the 13 expatriates in the biggest courtroom of the European Union. The Council of the Union was represented by two lawyers and the Legal Director of the Council.

BREXIT was declared irreversible in the European Commission Fact Sheet MEMO / 17/648 and the MILLER judgment of 24 January 2017 in paragraph 26 of the British Supreme Court.

Therefore, I pleaded on the behalf of the many consequences for expatriates such as the ability to vote in the European election of May 2019, or to obtain bank loans because of the uncertainty of the situation, and receive care for psychological disorders.

Some clients cannot even be compensated for the loss of European citizenship by acquiring another European nationality because some countries, such as Spain, forbid dual nationality. Either they deny their origin, or they lose their European citizenship and most of the rights that flow from it, including in case of agreement. The annexes to the contested decision of the Council of the Union seeking an agreement with the UK only protect a few European rights.

Whether there is an agreement or not, will affect issues such as the right to diplomatic protection, the right of European petition, the right to launch a European citizens’ initiative, the right to vote in European elections.

Either the request will be considered admissible or inadmissible, or the admissibility will be attached to the merits. The decision is expected probably for September-October 2018.

To paraphrase Article 20 TFEU, it follows from this case that European citizenship will become akin to national citizenship, in that it will not detach itself from a person without the specific choice being made by the individual in question.

The Court of the European Union is the last bastion for British European citizens scattered throughout Europe to exercise their right of effective appeal against the abolition of their European citizenship and related rights without being able to vote in advance.

Julien

Julien Fouchet and Fairouz Mokrane-Hondema, Présidents of the Association for the Unification of Droit des Affaires in Europe

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