What will happen to the EU citizenship rights of UK nationals after Brexit? A Dutch Court has caused quite a stir by making a reference to the European Court of Justice on the issue. Ronan McCrea explains why the Court of Justice should not, and probably won’t, accept it.
Quite a stir has been generated by the decision of a Dutch court to make a reference to the Court of Justice of the European Union on the issue of the EU citizenship rights of UK nationals post-Brexit.
In the second blog post of the series on Brexit and the ECJ, Piet Eeckhout, Dean of UCL Laws and Academic Director of the UCL European Institute, discusses citizens’ acquired rights and ECJ jurisdiction post-Brexit. Assessing the EU’s position on the issue, he argues that, although rather extravagant at first glance, it is not as unreasonable as it may seem.
In the Brexit negotiations the EU insists on continued ECJ jurisdiction over the provisions of the withdrawal agreement concerning so-called acquired rights: the rights to free movement and non-discrimination (and many other rights) of EU citizens who at present live in the UK, and UK citizens living in the EU. It’s a negotiating position which at first sight looks pretty extravagant. By the time the withdrawal agreement enters into force the UK will have left the EU and its institutions, including the ECJ. The proposal would presumably mean that, in matters of acquired rights, UK courts would continue to make references to the ECJ; and that the full force of EU law and of the Court’s rulings would continue to apply in these matters. As has been noted this would be wholly unprecedented: no non-member state subjects itself to this kind of “direct” jurisdiction (though as I pointed out in my previous post on the ECJ and Brexit it is preferable to speak of an indirect jurisdiction). The UK government rejects the proposal, pointing out that the UK courts are perfectly capable of enforcing these acquired rights. What are we to make of these positions?
DExEU’s recent position paper on judicial overisght and the Brexit withdrawal agreement certainly left more room for ECJ jurisdiction continuing post-Brexit than has been previously indicated by the government. In this blog post, Piet Eeckhout, Dean of UCL Laws and Academic Director of the UCL European Institute, explores the functioning of the ECJ and its relationship with the legal systems of the member states. He argues that if the UK wants to continue cooperating in EU regulatory frameworks, programmes and initiatives, it will have little choice but to accept the jurisdiction of the ECJ.
The Brexit negotiations have started, and it is becoming clearer by the day that the ECJ’s jurisdiction is a major issue. That is not surpising as the ECJ was always the elephant in the room of the referendum debates. Even if the Court’s role was never properly scrutinised in those debates, Brexiters managed to paint a picture of EU law and its Court ruling supreme. The UK was no longer truly sovereign, UK courts were bound by Luxembourg, and control had to be taken back.
Ronan McCrea, Barrister and Senior Lecturer in Law at UCL, argues that the UK could be under the jurisidction of the European Court of Justice for longer than many Brexiteers may care to imagine. Any withdrawal agreement negotiated under Article 50 has to comply with the basic constitutional norms of the EU legal order, including fundamental rights. This could have significant implications for the UK’s negotiating position, as well as the status of EU citizens living in the UK.
Those concerned with protecting human rights have been vocal in their concern that the Brexit process will lead to a reduction in human rights protection in the UK. Indeed, part of the case presented to voters in favour of Brexit was that leaving the EU would allow the UK to be free of the duty to comply with the EU fundamental rights norms, including Charter of Fundamental Rights and the possibly expansionist interpretation of that Charter by the Court of Justice of the EU. As with so many elements of the impossibly multifaceted and tangled process of Brexit, the reality may be less clear cut. It is in fact likely that any deal concluded under Article 50 will be subject to a degree of obligation to comply with the rights contained in the Charter and the fundamental elements of EU law, and indeed, and obligation to satisfy the Court of Justice that such compliance has occurred.