References to the European Court of Justice and the February 2018 decisions of the District Court, Amsterdam

Professor Anthony Arnull, University of Birmingham, UK

The decision of 7 February 2018

The interim
of the District Court, Amsterdam, of 7 February 2018 caused quite
a stir among Brexit-watchers. The case concerned promised not only to be the
first reference to the Court of Justice on Brexit but also to raise one of the
most fundamental questions posed by the UK’s decision to withdraw from the EU:
whether, in the absence of an agreement to the contrary, withdrawal would necessarily
mean that UK nationals would lose their EU citizenship and the rights that
status gave them.

The proceedings had been brought
by seven claimants. The first five were UK nationals resident in the
Netherlands. The sixth and seventh were associations. One, Brexpats, had been
established to protect the interests of UK nationals affected by Brexit. Its
claim was found to be inadmissible. The other, CADS, had been established to
promote Anglo-Dutch trade relations. A challenge to the admissibility of its
claim was rejected. The defendants were the State of the Netherlands and the
Municipality of Amsterdam. The case was heard by Judge F B Bakels, a former
Vice President of the Netherlands Supreme Court who, it is understood, had
chosen to devote a short period of time before his retirement to hearing first
instance cases.

The claimants were seeking a
ruling that, should UK citizens retain EU citizenship after Brexit, the
defendants would respect the attendant rights of the first five claimants. In
particular, they asked the court to rule that the defendants should not agree
to implement any agreement between the UK and the EU27 which failed to
guarantee those rights. Such a ruling may not strictly speaking be necessary,
since the withdrawal agreement, as an act of secondary EU law, could not alter
the rights conferred by citizenship of the Union, which derive ultimately from
the TFEU. In practice, however, a ruling in the terms sought might avoid the
need for further litigation on the point.

Should the withdrawal of the UK
from the EU be found to remove from UK citizens their status as citizens of the
EU (as the wording of Article 20(1) TFEU would suggest), the claimants sought
an order requiring the Netherlands to carry out an individual assessment of the
compatibility with the principle of proportionality of any decision to restrict
rights deriving from EU citizenship; ordering the Municipality to give effect
to the individual assessments carried out; prohibiting the State from insisting
that one of the claimants should relinquish her UK nationality; and ordering
the Municipality and the State to facilitate multiple nationality for a person
seeking Netherlands nationality within two weeks of the court’s ruling. The
claimants argued that these claims required an authoritative ruling on the
effect of Article 20 TFEU. They had therefore drafted a number of questions
with a view to having them referred to the Court of Justice for a preliminary

The claimants stated that they
had all made use of the fundamental freedoms to reside and work in another
Member State and that the uncertainty surrounding their future legal position
was already causing them harm. In organising their lives, they had to take
account of the distinct possibility that the Netherlands might after Brexit
classify them as third country nationals and require them to leave without conducting
an individual assessment of their circumstances. That threat meant that they
had to decide now whether to seek citizenship of the Netherlands. This was an
expensive process and might have consequences for their right to retain UK
nationality and therefore for their continuing right to visit the UK. There
were also questions about the status of partners who might or might not have UK
nationality; parents of UK nationality who had children born in the Netherlands;
and UK nationals in the Netherlands whose work made it essential for them to continue
to be able to travel freely throughout the EU27.

The judge ruled that, in order to
assess these claims, it was necessary to establish whether loss of the status
of nationality of a Member State automatically resulted in loss of citizenship
of the Union or whether considerations of fundamental, acquired and minority
rights and solidarity between EU citizens might require that outcome to be
qualified. He therefore announced his intention to submit two questions to the
Court of Justice:

Whether, in
the absence of an agreement on the matter in the Brexit negotiations, UK
withdrawal from the EU would automatically deprive UK nationals of their status
as EU citizens and of the rights and freedoms attaching thereto;

If not,
whether those rights and freedoms were subject to any conditions or

The parties were given the right
to comment on the proposed questions within a week of the judgment. They were
expressly told they could not comment on any other aspect of the judgment or on
the judge’s intention to refer questions to the Court of Justice.

The decision of 20 February 2018

It therefore seemed likely that
the Court of Justice would be given the opportunity to rule on issues of
profound significance for the scope of EU citizenship and the course of the
Brexit negotiations. However, on 20 February 2018, Judge Bakels granted the
State and the Municipality permission to appeal to the Court of Appeal, Amsterdam,
against his earlier ruling. The appellants argued that the uncertainty of which
the claimants were complaining could not be resolved by the proposed questions
because their legal position depended on the content of the withdrawal
agreement. This was not entirely correct because, as noted above, the
provisions of the TFEU on citizenship will take precedence over the terms of
the withdrawal agreement. The appellants rejected the claimants’ argument that
they were already suffering harm and asserted that there was no real dispute
between the parties.

Appearing to have a change of
heart, Judge Bakels decided to depart from the normal rule laid down by the
Netherlands Code of Civil Procedure that an appeal could be lodged only at the
same time as the final judgment. He acknowledged that this did not in itself
suspend the decision to refer to the Court of Justice. However, he observed
that it would be contrary to due process for a reference to be made at this
stage and decided that this should not now be done. It would be for the Court
of Appeal, Amsterdam, to decide whether a reference should be made and, if so,
what questions should be referred.

Challenging reference decisions

There is a considerable body of
case law on the circumstances in which a decision of a national court to make a
reference to the Court of Justice may be challenged before a superior national
court. It may seem surprising that such an appeal is possible. In Joined Cases
C-332/92, C-333/92 and C-335/92, Eurico
, for example, the Court of Justice pointed out (para 17) that

‘it has
consistently held that it is solely for the national courts before which
actions are brought, and which must bear the responsibility for the subsequent
judicial decision, to determine in the light of the special features of each
case both the need for a preliminary ruling in order to enable them to deliver
judgment and the relevance of the questions which they submit to the Court.’

Moreover, the Court made it clear
in Case 166/73 Rheinmühlen
v Einfuhr- und Vorratsstelle Getreide
that a national court cannot be
deprived of its power to make a reference by the rulings of superior national
courts. Indeed, in that case Advocate General Warner argued (at pp. 43-44) that
‘national legislation cannot effectively provide for a right of appeal against
an order of a lower Court referring a question to this Court.’ The discretion
conferred on lower national courts by what is now Article 267 TFEU, he said,
was exercisable at any stage of proceedings before them and could not ‘be
fettered by any rule or provision of national law’ (at p. 47).

The view of Advocate General
Warner was not initially followed by the Court. In Case 146/73 Rheinmuhlen-Düsseldorf (para 3), the
Court ruled:

‘in the case
of a court against whose decisions there is a judicial remedy under national
law, Article [267] does not preclude a decision of such a court referring a
question to this Court for a preliminary ruling from remaining subject to the
remedies normally available under national law.’

The Court added: ‘Nevertheless,
in the interests of clarity and legal certainty, this Court must abide by the
decision to refer, which must have its full effect so long as it has not been

In 2008, that approach was
substantially modified in Case C-210/06 Cartesio.
In that case, the Court of Justice declared (paras 95 and 96):

‘Where rules
of national law apply which relate to the right of appeal against a decision
making a reference for a preliminary ruling, and under those rules the main
proceedings remain pending before the referring court in their entirety, the
order for reference alone being the subject of a limited appeal, the autonomous
jurisdiction which Article [267 TFEU] confers on the referring court to make a
reference to the Court would be called into question, if – by varying the order
for reference, by setting it aside and by ordering the referring court to
resume the proceedings – the appellate court could prevent the referring court
from exercising the right, conferred on it by the [TFEU], to make a reference
to the Court.

In accordance
with Article [267 TFEU], the assessment of the relevance and necessity of the
question referred for a preliminary ruling is, in principle, the responsibility
of the referring court alone, subject to the limited verification made by the
Court in accordance with the case-law… Thus, it is for the referring court to
draw the proper inferences from a judgment delivered on an appeal against its
decision to refer and, in particular, to come to a conclusion as to whether it
is appropriate to maintain the reference for a preliminary ruling, or to amend
it or to withdraw it.’

The Court’s ruling in Cartesio effectively made judgments of
superior courts on the appropriateness of a reference advisory only. That outcome
might in some cases be incompatible with the national court hierarchy. In the Lady & Kid case (Order of 11
February 2010), the Danish Supreme Court therefore ruled that references made
by lower Danish courts should no longer be subject to appeal. (See M Broberg
and N Fenger, Preliminary References to
the European Court of Justice
(OUP, 2nd ed, 2014) 329-330; M Broberg and N
Fenger, ‘Preliminary references as a right: but for whom? The extent to which
preliminary reference decisions can be subject to appeal’ (2011) 36 European
Law Review 276.) Similarly, in a decision of 30 March 2010, the Belgian Cour de
Cassation declared an appeal brought against a reference by a lower court
inadmissible (see K Lenaerts, I Maselis and K Gutman, EU Procedural Law (OUP,
2014, 81). The same conclusion was reached by the Irish Supreme Court as long
ago as 1983: see Campus Oil v Minister
for Industry and Energy
[1984] 1 Common Market Law Reports 479; D O’Keeffe,
‘Appeals against an order to refer under Article 177 of the EEC Treaty’ (1984)
9 European Law Review 87.

It should be noted, however, that
Cartesio does not apply unless it is
only the decision of the lower court to make a reference that is the subject of
an appeal and where the main proceedings therefore ‘remain pending before the
referring court in their entirety’ (para 98). Thus, in Case C-525/06 Nationale
, the Court held that there was no need to reply to a reference
made by a court before which the case concerned was no longer pending, having
been brought in its entirety before a higher court. Responsibility for ensuring
that the outcome was consistent with the requirements of Union law in such
circumstances belonged to the latter court.

Implications for the Amsterdam proceedings

What are the implications of the
case law briefly summarised above for the proceedings brought before the
District Court, Amsterdam? It will be noted that no reference has so far been
made in those proceedings. It would therefore seem to follow that the argument
that a reference should be made will need to be repeated before the Amsterdam
Court of Appeal.

The question whether an appeal
could be brought against a decision of a national court not to make a reference
was considered by the Danish Supreme Court in Lady & Kid. It was held there that this remained possible and that,
if the appellate court decided that a reference should be made, that ruling
would be binding on the lower court. However, O’Keeffe (above, p103) argues
persuasively that ‘[t]he reference in a case where the appellate court finds it
necessary should be by order of the appellate court, otherwise the discretion
of the lower court under Article [267] is directly violated…’ This appears to
have been the view taken by Judge Bakels in his decision of 20 February 2018.

The grounds of appeal put forward
by the Netherlands Government are varied. On the central issue of the effect of
Article 20 TFEU, the Government asserts that this provision is acte clair and rejects the judge’s
reasoning on acquired rights. A national court might easily conclude that these
questions at least should be referred to the Court of Justice, provided it did
not accept the argument of the Netherlands Government that the case is artificial
or contrived.

concerning EU law enjoy a presumption of relevance. The Court may refuse to
give a ruling on a question referred by a national court only where it is quite
obvious that the interpretation, or the determination of validity, of a rule of
EU law that is sought bears no relation to the actual facts of the main action
or its purpose, where the problem is hypothetical, or where the Court does not
have before it the factual or legal material necessary to give a useful answer
to the questions submitted to it…’

This makes it necessary for the
national court to ‘give at least some explanation’ of why it has chosen the EU
provisions of which it is requesting an interpretation (Case C-370/12 Pringle,
para 84).

The claimants in the case under
discussion have given plausible explanations of the range of ways in which the
uncertainty surrounding their status is causing them direct and immediate harm.
Even if the claims of only one of the claimants were considered credible, that
would be enough to justify a reference to the Court of Justice. In his first
ruling, the judge was satisfied that there was in the circumstances ‘no
question of a hypothetical or notional dispute’. The questions he decided to
refer to the Court were based on a detailed examination of the legal background
and included extensive analysis of the case law of the Court. It therefore
seems unlikely that the Court would refuse to give a ruling if it were asked to
do so.

It is not clear why Judge Bakels
departed from the normal rule by permitting an appeal to be brought at the
interim stage and changed his mind about the desirability of a reference. If
the case were none the less to reach the Court of Justice by way of a reference
from either the District Court or the Court of Appeal, it would present the
Court of Justice with a welcome opportunity to clarify the scope of citizenship
of the Union. This would enable the Brexit negotiations to proceed on the basis
of a correct understanding of the law and provide a degree of certainty to
current citizens of the Union whose interests are in danger of being

Barnard & Peers: chapter 27

Photo credit: DutchReview

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