British in Europe (BiE) has applied to intervene in two actions being brought in the General Court of the EU about the EU Council decision of 30 January 2020 to conclude the Withdrawal Agreement. BiE’s strategy has always been that the best way of preserving our rights was by lobbying but that we should not hesitate to litigate to try to preserve rights which lobbying fails to secure. The most critical right denied us by the Withdrawal Agreement is EU-wide free movement.
Shindler v Council was filed with the General Court on 30 March 2020 and seeks either the annulment of the Council decision concluding the Withdrawal Agreement in its entirety (which we do not support as the result would be Brexit with no deal on citizens’ rights) or alternatively its annulment only insofar as it distinguishes automatically and generally, without any test of proportionality, between EU citizens and United Kingdom citizens from 1 February 2020.
JU v Council was filed with the General Court on 23 April 2020 and seeks the annulment of the EU Council decision concluding the Withdrawal Agreement only insofar as it deprives UK nationals of their status as EU citizens and the rights that they have as EU citizens without their consent and without due process. The application argues that EU citizenship is the fundamental status of EU citizens and that it thus personal in nature. Once it vests or is acquired, the applicants argue that it does not automatically fall away following Brexit and that no person can be deprived of their EU citizenship and their rights as EU citizens arbitrarily.
These applications have been brought by a number of individuals, some of whom do not live in the EU. BiE considers it vital that the Court should hear the distinct voice of those UK citizens living in the EU who acquired, exercised and relied on their EU citizenship rights to make lives, careers and families in an EU country before Brexit. BiE has thus taken the view that we, as the coalition that has been accepted by both the EU and the UK as representing UK nationals in the EU, should be in the room when these arguments are considered.
Applications by individuals or groups in the General Court against general measures, i.e. measures that are not addressed to specific individuals or organisations, such as the EU Council decision in this case, must satisfy the rules on “standing” – i.e. who is allowed to bring an application for the annulment of the EU act. As per normal procedure, we will need to wait until the Court decides whether the applicants have “standing” before our applications to intervene are considered.
We will keep you all informed of what is happening as the cases progress. However, we will not engage in any debate in social media or elsewhere on the merits of the cases themselves or our intervention. The long practical experience of the lawyers on our steering committee has taught us that such discussions are best had in court and not by giving our opponents advance insight into our thinking.
In the meantime, BiE will continue to keep an eye out for suitable cases to bring or support before the courts of the EU, whether by a direct action like these in the General Court if possible, or by actions in the courts of Member States which are then referred to the CJEU for a preliminary ruling.
In making these applications BiE is represented pro bono by the Brussels office of the well-known international law firm White & Case LLP. The team there is being led by Nicholas Forwood QC, himself formerly a judge of the General Court, together with partners Genevra Forwood and Jacqueline MacLennan, and associate, Kate Keliher. BiE has been very fortunate to obtain this exceptionally high level of representation and is really grateful to White & Case and to the individual lawyers involved for agreeing to take us on and for all their hard work.
British in Europe, September 2020