A score of British citizens currently living in the Netherlands were in Amsterdam on the morning of 17 January 2018 to hear lawyers plead the legal pros and cons of the argument “once an EU citizen, always an EU citizen”, i.e. EU citizenship is additional to and separate from citizenship of an EU Member State. The goal was to get the judge of the District Court to ask the Court of Justice of the European Union to provide a ruling. EU citizenship is a concept which has been enshrined in successive EU Treaties for the last 25 years. It confers a number of rights, including the right to freedom of movement.The BHOV Foundation brought the case along with five individual plaintiffs and Commercial Anglo-Dutch Society (CADS). The defendants are the Dutch government and the City of Amsterdam. Those lending moral support were mainly members of British in the Netherlands and of the BHOV Facebook Group. This Group is separate from the Foundation, though officers of the Foundation are drawn from among the most active members of the Facebook Group.
For the plaintiffs, Christiaan Alberdingk Thijm, argued that EU citizenship is an inalienable right. He noted that the wording of the EU Treaties has evolved since the original wording in the Maastricht Treaty, the first EU Treaty to incorporate the notion of EU citizenship. That Treaty talked of EU citizenship complementing citizenship of a Member State not replacing it. The subsequent Lisbon Treaty says “Citizenship of the Union shall be additional to and not replace national citizenship.” Christiaan cited a number of cases previously heard by the Court of Justice of the European Union to support the argument that like Roman citizenship in ancient times “civis europeus sum” should be a status in its own right.
Among the arguments that the Dutch government and the City of Amsterdam used to try and rebut the BHOV case were the fact that the Dutch government could not be considered to have any standing in the case since it is the EU which is negotiating and that any ruling on these issues would disrupt the Brexit negotiations between the EU and the UK. They also argued that the questions to be answered were not formulated clearly enough, that there are no precedents for rulings against a group of citizens rather than individuals, that CJEU will not rule quickly enough for it to make a difference to the outcome of the negotiations and used different CJEU case law to support their case.
There was a clear interest in the questions from the judge to the lawyers in the exact status and coverage of the Joint Report agreed between the European Council and the UK government last December. That contained the agreements on citizens’ rights, which resulted in the European Council agreeing that enough progress had been made on this (and on the financial settlement and Northern Ireland) to proceed to the next phase of the negotiations.
Christiaan Alberdingk Thijm pointed out that even if the provisions of that agreement are incorporated in the Withdrawal Agreement on the UK leaving the EU, there will be groups of British citizens living in the EU who are not covered as things stand and that the right to freedom of movement is outside that agreement.
The defendants indicated that they thought that the case was politically motivated rather than by a genuine concern for a ruling on points of law and the judge indicated something similar. However, he did not throw the case out (which would have been a possibility) and promised to consider it carefully. The judge concluded by saying he will rule in three weeks’ time on whether to ask the CJEU to consider the issues put to him.
Judgment due: 8 Feb
Media coverage was good – here are a sample: