Amsterdam, 19 June 2018. Brits residing in the Netherlands and elsewhere in the EU will continue to be left in a state of insecurity regarding their rights post-Brexit. As such, they will not know whether they can remain in their EU-country of choice or whether they can freely move within the EU after Brexit. This is the result of a decision by the Amsterdam Court of Appeal not to ask questions to the Court of Justice of the EU in Luxembourg (“CJEU”) about the EU citizenship rights post-Brexit.

In doing so, the Court of Appeal quashed an earlier decision of the Amsterdam District Court. Nevertheless, the Court of Appeal agrees with the District Court that Brexit creates insecurity for many Brits and that ultimately it is up to the CJEU to decide whether Brits will continue to be able to benefit from the rights derived from their EU citizenship. In addition, the Court of Appeal states that it is questionable whether Brexit will result in Brits automatically loosing their freedom of movement and residence rights.

The main reason for not referring questions at this stage, is that, according to the Court of Appeal, the claims brought in summary proceedings are insufficiently concrete.

The claimants are currently carefully examining the judgment in order to determine next steps. These may include an appeal to the Dutch Supreme Court within three months or initiating a proceeding on the merits.

Some key paragraphs from the Brexit-ruling

Par. 3.10

Like the Judge in summary proceedings, the Court of Appeal confirms that the question of the legal status of citizens of the United Kingdom who reside in another EU Member State and thus exercised their rights and freedoms under Article 20 TFEU, after the United Kingdom has left the EU, must be answered according to EU law. The Court of Appeal also agrees with the decision of the Judge in summary proceedings that it is reasonable to doubt the correctness of an interpretation of Article 20 TFEU meaning that the loss of the status of citizen of an EU Member State will automatically lead to the fact that the EU citizenship derived rights and freedoms, as far as the right to free movement and residence, are lost.

Par. 3.11

Although the CJEU is the designated authority to answer the question of which interpretation is correct by asking preliminary questions, this does not mean that these questions should be asked in the present proceedings. According to the second paragraph of Article 267 TFEU, the preliminary reference to the CJEU is only used when a decision of the CJEU is necessary to rule on the dispute before the referring court. That is not the case in this case in the opinion of the court. To this end, the following is considered.

Par. 3.12

(…) The court establishes, with the State and the Municipality, that the contested decision does not discuss the specific claims of Williams c.s. Regarding the claims of Williams c.s., according to the Court it should be concluded that these are too vague and indeterminate in order to be granted in this summary proceeding, irrespective of the answer to the question whether the aforementioned interpretation of Article 20 TFEU is correct.

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“We are obviously disappointed with the court’s decision. This case has always been about seeking clarification. Not only for the 46.000 Brits living in the Netherlands, but also for the 1.2 million Brits living in other EU countries. Given today’s judgment much uncertainty remains.”

Stephen Huyton, plaintiff.

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The case was brought before the Amsterdam District Court against the Dutch State and the City of Amsterdam by five Brits living in the Netherlands and the associations Brexpats and Commercial Anglo Dutch Society (“CADS”), who claimed that the State must respect their EU rights after a Brexit.

EU citizenship enables every EU citizen to freely move within the EU and take up residence in another Member State. This is what 1.2 million Brits in Europe have done. They can work and start families in the residence of their choosing and enjoy the same rights as their fellow citizens.

On 7 February 2018 summary judge Mr Bakels decided to refer preliminary questions to the CJEU. The honorable Judge considered that Brits may not necessarily lose their EU citizenship, which might be considered as an “acquired right”. The Amsterdam Court of Appeal has now decided to annul this decision.

It would have been the first time that a court would ask the CJEU about the consequences of Brexit for the citizenship rights of Brits. The case was promised to become a landmark case about EU citizenship.

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“It is now confirmed in two instances that only the CJEU can determine what Brexit means for my clients. I urge all court in the EU to bring these issues to the CJEU as soon as possible. Brits in the EU are entitled to legal certainty about their citizenship rights upon which they have build their lives.”

Christiaan Alberdingk Thijm, the lawyer representing the plaintiffs.

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bureau Brandeis, the law firm handling the case, litigates in the public interest from its mission to bring socially relevant legal questions before the judge. bureau Brandeis has been and is involved several other public interest cases, where fundamental rights are at stake. They include cases on the Dutch Intelligence and Security Services Act and the right to legal assistance during questioning. The firm has wide experience in litigating before the CJEU and the ECtHR.

For more information on the Brexit case you can contact:

Christiaan Alberdingk Thijm

Christiaan.alberdingkthijm@bureaubrandeis.com

Please find more information on the case via the following links:

https://bureaubrandeis.com/update-kort-geding-over-de-brexit-en-het-eu-burgerschap/

https://bureaubrandeis.com/kort-geding-brexit-en-eu-burgerschap/