To Challenge Loss of Status
For some: ‘there is room for decoupling the concepts of nationality and Union citizenship: By maintaining Union citizenship in the case of loss of Member state nationality. (...) If the EU sees Union Citizenship as a fundamental status for the peoples of Europe, then the EU can determine that certain groups of people who lose their member state nationality will nonetheless remain Union citizens.’ (Jessurun d’Oliveira 2011, p. 13)
Leaving aside the risk of introducing an unjustified distinction between cases ofloss and cases ofacquisition, it is a fact that there have been voices in favour of decoupling Union citizenship from member state nationality since the inception of the status. Normatively, it has long been argued that not only citizens of member states should be equipped with EU citizenship but also third country nationals who have established themselves in the Union (already in Follesdal 1993). The political legitimacy of such a de-coupling would rely on the fact that, for the first time in the history of integration, Union citizens, who had automatically acquired their supranational citizenship with the Treaty of Maastricht, raised their political voice to state that they want to remain European citizens. European citizenship did not formally exist at the time of the 1975 UK referendum on EU membership, and citizens voting in the EU accession referendums in the context of the 2004 enlargements were not European citizens beforehand.
Leaving aside the political unlikelihood and the legal cumbersomeness of re-drafting primary EU legislation for a formal decoupling, little help for those advocating decoupling is to be found in international sources dealing with federal citizenship structures in the event of succession.24 Likewise - pace some suggestions recently made25 - the genuine substance doctrine from Ruiz Zambrano2 that overcomes the traditional requirement that Union citizenship be activated by border-crossing, would not allow decoupling: The doctrine, at odds with the reverse discrimination ofstatic citizens (Tryfonidou 2008), has been much watered down. It is exceptional27 and the ratio decidendi is to be interpreted strictly.28 It cannot serve as a basis for claims made by first country nationals, that is, nationals who have not made use of the freedom of movement, against the loss of status.
A more interesting candidate is the consequential reasoning in Rottman that specifically deals with loss of Union citizenship. In this case of great constitutional importance, the European Court of Justice concluded that ‘a citizen of the Union who is faced with a decision withdrawing his [citizenship], and placing him (...) in a position capable of causing him to lose the status conferred by Article 17 EC [Article 20 TFEU] and the rights attaching thereto falls, by reason of its nature and its consequences, within the ambit of European Union law.’29 The reason why this case may carry precedential value is that the case focuses on loss ofUnion citizenship: The European Court of Justice decided that Janko Rottmann could, unlike Ms. Kaur,30 rely on his rights as a European citizen. Comparing the situation of Mr. Rottmann with that of Ms. Kaur, the denial of access to nationality would not constitute a problem, but the very fact that Rottmann once had the status of Union citizen, which he lost, was crucial in order to fall within the scope of European law. The Rottman doctrine is applicable not only to cases of deprivation when a fraud is discovered and the statelessness is the result, but also in other cases of deprivation, even if no statelessness is caused but the EU citizenship could be lost.31
The Rottman judgement points to a re-ordering of the relationship between member states’ nationality and Union citizenship in favour of the latter. Gareth Davis, for one, speaks of abandonment of the hierarchy of the two concepts in favour of ‘citizenship pluralism’ (Davis 2011). Observers of the successive jurisprudence by the Court of Justice on Union citizenship were not surprised to discover the activism of Rottman: The readiness of the Court to dare take a further step in this ‘holy’ domain of the member states could easily have been foreseen.32 Since Micheletti, the Court has shown itself prepared to influence nationality laws in the case of a clear breach of Union law.
Before the activism of the court,33 however, doctrine is divided (Jessurun d’Oliveira et al. 2011). For some, the limits to a member state’s ability to strip its nationals of access to European citizenship rights is essential for explaining the ratio of the institution of Union citizenship (its federal vocation) as well as the court’s well established case-law; for others, it is a form of ‘imperialism communautaire’ (Ruzie 1993). While some claim the ‘judicial avantguardism’ is to be praised, for others, in this very case-law ‘the court is persisting in its judicial error’ (Jessurun d’Oliveira 2011, p. 9).
There is also an institutional twist to this doctrinal divide: While the case- law of the European Court of Justice moves in the direction of making nationality matters a mixed competence, it simultaneously constitutes a dissenting voice when compared to the positions expressed by Member States, the Commission and the European Parliament that all seem to endorse the traditional reading of nationality matters being domaine reserve. In fact, the Commission has systematically taken the perspective of defending member state prerogative in nationality matters. Also the European Parliament has taken this view more often than not. The advocates of the opposed view, instead, insists on the decoupling of national and European citizenship: European citizenship is not merely ‘derivative’ (Maastricht) but then also ‘complementary’ (Treaty of Amsterdam) and, after Lisbon, EU citizenship is ‘additional’ (Geogiadou 2015, p. xix).
In this divided environment, it seems that the prima facie assurance that Brexit loss provision would not fall within the remit of Union law (since loss would only happen simultaneously to the UK’s exit from the Union) is a bit shaken: ‘By reason of its nature and its consequences’34 Brexit puts Union citizens of exclusively British nationality at risk of being stripped of their Union membership status in a way that might fall within the ambit of EU law.
If this is so, decisive are the possibilities to challenge the loss provision. Are there any venues for challenging the loss provision as such in which the consequentialist interpretation in Rottman might play a role?
Challenging the loss of rights, where Rottman may be relevant, is possible, but loss of status is another matter. A possibility is the right of standing of a British second country national living in a member state who wishes to challenge the loss of status before a domestic court in the country of residence. One such case might involve for instance the British citizen who, on the basis of the status of Union citizenship, holds local political office of which (s)he will be discharged following Brexit. Dealing with such a case, a national court may refer to the European Court of Justice. Were the European Court of Justice to express itself in a preliminary ruling on the legitimacy of the loss of status as such, Rottman's ratio decidendi would apply. The Court might find the loss of Union citizenship to be inadmissible since it previously ruled that a ‘national provision governing nationality [that] restricts the Union citizen without a legitimate interest and/or in a disproportionate manner' was such that the provision shall be put aside. Could it mean that Union citizenship ought to be recognised to the former Union citizenship? Ought (s)he be naturalised though a procedure of naturalisation by declaration (not by application, which would be open to all second country nationals anyway)? Could the local politician continue to stand in elections?
During the interregnum, that is, after invoking Article 50 but before exiting, would a British first country national be refused right of standing before a national (UK) court to challenge the loss provision? Albeit politically remote, would not the Court be free to activate a preliminary ruling procedure? If the European Court of Justice could be called into question, would it not be able to rely on its Rottman doctrine? In Rottman the crucial point was the loss of Union citizenship as such. Brexit would ‘by reason of its nature and consequences’ almost tautologically place many ‘in a position capable of causing [them] to lose the status conferred by Art. 17 EC.’ Were this line of reasoning followed, the European Court of Justice could open the constitutional dispute we referred to in Chapter 4: Union citizenship or Article 50 - aut aut? This certainly raises the question if the Court in Luxembourg is the authority to ask to fashion the constitutional arrangement in the European respublica composita (Beaud 2009, p. 222) or if this role ought not to be better allocated to democratically elected authorities.
Once closed, the interregnum, and this far-off window of legal opportunity in which the European Court of Justice could vindicate decoupling, there are no procedural venues through which former Union citizens could challenge their loss of status. International law provides that states are obliged to leave the possibility to citizens deprived of citizenship (no matter if it causes statelessness, and no matter if caused by administrative decision or by the workings of the law) the right to challenge the provision in court. But channels for challenging the loss of status following withdrawal from the Union are not explicitly provided for neither in European law, nor in domestic law. Were no venues open to challenge the loss of Union citizenship for British citizens, we would need to conclude that Article 50 introduces surreptitiously an unchallengeable new ground for loss of the status. It cannot be ruled out that, in keeping with international law, such an unchallengeable provision of loss might, after all, qualify as arbitrary.