Dutch judges refer British expats' case to EU court
February 7, 2018
Ahead of Brexit, UK citizens living in the Netherlands applied to court to have their rights as EU citizens recognized and protected. The court has passed their queries on to the European Court of Justice.
Image: picture-alliance/AP Photo/V. Mayo
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Judges at the Amsterdam District Court have asked the European Court of Justice (ECJ) to answer two questions on the status of British citizens living in the Netherlands after the UK leaves the European Union in March 2019.
The questions are: "Does Brexit mean that Britons automatically lose their European citizenship or do they maintain their rights, and if so, under what conditions?" lawyer Christiaan Alberdingk Thijm said on behalf of his British clients on Wednesday.
Five British expatriates living in the Netherlands and the organizations Brexpats and the Commercial Anglo Dutch Society took their case to court. They claimed that expats have independent rights as EU citizens, over and above being citizens of any specific EU member country and therefore their legal rights should remain after Brexit. They argued that their rights, including freedom of movement, should be protected by the Dutch government, even after Britain leaves the bloc.
One of the plaintiffs, Stephen Huyton, has lived in the Netherlands for 24 years. He said the plaintiffs had asked the Dutch judges to refer their case to the European court for clarification as to what exactly being a European citizen means.
Judge Floris Bakels gave a written verdict issued by the Amsterdam District Court on Wednesday stating, "We refer the questions to the European Court of Justice."
"The essence of a democratic constitutional state is that the rights and interests of minorities are protected as much as possible," he added.
It is unclear when the ECJ will answer the British expats questionsImage: Imago
A spanner in Brexit talks?
Huyton said he was "shocked and delighted" with the decision, which he admitted "could throw a spanner in the current Brexit negotiations."
"This case intends to give us clarity," Huyton added, "not only to the 46,000 Britons living in The Netherlands, but also to the million other British citizens living in mainland Europe."
In a written reaction, the British government said, "We have secured a deal that will safeguard the rights of UK nationals living in the European Union, so that they can continue living their lives broadly as they do now." However, exactly what the safeguards are remains unclear.
Bakels said in his ruling that "there has to be more clarity about the consequences of Brexit for EU citizenship." He gave lawyers a week to comment on the decision and to add any other preliminary questions to be put to the ECJ.
Confusing status
Lawyer Thijm said British citizens currently have no idea what Brexit means for them: "Are you an EU citizen for life or can your citizenship be taken away from you? That is the fundamental question that will be put forward to the European Court."
According to the Treaty on the Functioning of the EU, any person who is a citizen of an EU nation is automatically also an EU citizen. EU citizenship grants rights including the ability to move, work and live freely within the bloc.
It wasn't immediately clear when the European Court of Justice would deliver answers to the questions.
Brexit negotiations: What are the key issues?
Brexit talks began in June and both sides have been frustrated at the lack of progress. DW has taken a look at key issues being debated in Brussels as the clock ticks toward Britain's scheduled departure in March 2019.
Image: picture-alliance/dpa/o. Hoslet
Two phases
EU leaders agreed to negotiating guidelines during a summit in April 2017 that divided the divorce talks into two phases. Phase I, in which both sides aimed to settle the basic terms of Britain's departure, started in July and ended with an agreement on "sufficient progress" in December. Officials are now holding Phase II negotiations on the post-Brexit relationship between Britain and the EU.
Image: Reuters/File Photo/Y. Herman
The "Brexit Bill"
London agreed to a formula for calculating what it owes in its "divorce bill" to the EU in early December after months of haggling by British officials. The current EU budget expires in 2022 and EU officials have said the divorce bill will cover financial obligations Britain had committed to before triggering article 50. The final bill will reportedly total around £50 billion (€67 billion).
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Citizens' rights
Both sides agreed in early December that the 3 million EU citizens currently in Britain and the 1.1 million British citizens in the EU keep their residency rights after Brexit. British courts will have immediate jurisdiction over EU citizens living in Britain. But the EU's highest court, the ECJ, can hear cases until 2027 if British judges refer unclear cases to them.
Image: picture-alliance/dpa/B. Smith
The Irish border
Britain and the EU also agreed in December that no border checks between the Republic of Ireland and Northern Ireland would return post-Brexit. How feasible the commitment will be is unclear, as Britain's commitment to leaving the EU Single Market and Customs Union makes it difficult to avoid customs checks at the Irish border.
Image: Reuters/C. Kilcoyne
Transition period
Theresa May envisages a two-year transition period after March 2019. Both sides still have to hash out the details of the transition period in Phase II, including the exact end-date, whether new EU laws passed during the period will apply to Britain, and whether Britain can negotiate its own free trade deals. British officials hope to agree on the terms of the transition by March 2018.
Image: Imago
Trade
May has repeatedly said Britain will leave the European Single Market and the EU Customs Union. Leaving both could disrupt British-EU trade, but allow Britain to negotiate its own free trade deals and restrict EU migration — key demands by pro-Brexit politicians. London has said it wants to negotiate a new EU-UK trade deal during Phase II to minimize trade disruption before March 2019.
Image: Picture alliance/empics/A. Matthews
Immigration
Britain has also vowed to restrict EU migration into Britain after Brexit. However, some British lawmakers are wary that a sharp drop in immigration could lead to shortfalls in key sectors, including health, social care and construction. The EU has warned that Single Market access is out of the question if London decides to restrict the ability of its citizens to live and work in Britain.
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Security
Recent terror attacks across Europe including a string in Britain underline both sides' support for continued security cooperation after March 2019. But access to EU institutions such as Europol and programs such as the European Arrest Warrant require compliance with EU laws. Whether Britain will still be compliant after it leaves is unclear.
