The Wightman case is a landmark decision of the Court of Justice that deserves careful attention. The speed at which developments are taking place in Brexitworld are probably clouding our eyes for the time being, but in the following months a more thorough analysis of the judgment will probably emerge and provide further insight into this extraordinary case.
For the time being, I want to raise a point of the judgment that so far has come unnoticed in the discussions (at least in the ones I have followed), which could show the way for the hundreds of thousands of Britons living in the continent and who are about to lose their EU citizenship.
In paragraph 64 of the Wightman judgment, the Court argues, shortly before ruling on the revocability of the withdrawal application, as follows:
“It must also be noted that, since citizenship of the Union is intended to be the fundamental status of nationals of the Member States (see, to that effect, judgments of 20 September 2001, Grzelczyk, C‑184/99, EU:C:2001:458, paragraph 31; of 19 October 2004, Zhu and Chen, C‑200/02, EU:C:2004:639, paragraph 25; and of 2 March 2010, Rottmann, C‑135/08, EU:C:2010:104, paragraph 43), any withdrawal of a Member State from the European Union is liable to have a considerable impact on the rights of all Union citizens, including, inter alia, their right to free movement, as regards both nationals of the Member State concerned and nationals of other Member States.”
As a result, the Court concludes that “given that a State cannot be forced to accede to the European Union against its will, neither can it be forced to withdraw from the European Union against its will.”
For the first time, the Court is openly admitting that Brexit has “a considerable impact on the rights of all Union citizens”, and such impact must be pondered on by the withdrawing Member State in case it decides to revoke its intention to withdraw. In other words, the impact of Brexit on EU citizens conditions the interpretation of Article 50 TEU and consequently it entitles the withdrawing Member State to halt the process. As a logical result, the impact of the withdrawal on EU citizens must also have an effect on the interpretation of all Treaty provisions, particularly those that deal with fundamental rights, EU citizenship and free movement of persons.
This passage of the Wightman judgments confirms what Piet Eeckhout and Eleni Frantziou have coined as the constitutional interpretation of Article 50 TEU. This provision is not only procedural, it also reflects underlying rights and duties that fall upon the Union and the Member States. Such rights and duties have their foundation on several pillars of integration enumerated in Wightman, and they include the EU’s values (Article 2 TEU), the protection of fundamental rights (the Charter) and EU citizenship (Article 20 TFEU)
The rights and duties of Article 50 TEU apply to all the parties involved in the withdrawal process: the withdrawing Member State, the remaining Member States and the Union. In the case of the withdrawing and remaining Member States, the Wightman ruling confirms that the protection of EU citizens is a key imperative throughout the withdrawal process. In the same way that the withdrawing Member State must take into account the interests and rights of citizens (and thus its power to revoke the withdrawal process if necessary) the same applies to the remaining Member States. National authorities must do everything in their power to protect EU citizens residing in their territory form the “considerable impact” of a withdrawal of a Member State from the Union.
In fact, some Member States have already been acting in accordance with this interpretation of Article 50 TEU and have enacted specific measures to ensure that EU citizens living in their territory and in the verge of losing their citizenship have the ability to continue being EU citizens. That was the case of Britons with a right to request nationality in a Member State that did not admit double nationality, or only allowed it in very restrictive cases. Germany and Luxembourg introduced measures to allow Britons to enjoy double nationality and thus to retain their EU citizenship after Brexit day. These measures applied to Britons with very close links to the host Member State and after having exercised free movement for several years on the grounds of EU law. Consequently, it is fair that the free moving EU citizen is granted reasonable assurances to remain an EU citizen if he or she wishes so.
However, other Member States are reluctant to open this door. The Netherlands is an extreme case. It refuses any recognition of double nationality and therefore long-standing British residents there are facing a stark choice. However, a country like Spain applies dubious double standards. It admits double nationality for nationals from Portugal, Andorra, The Philippines and Latin American countries, as well as Sephardic Jews with links to Spain and brigadistas of the Spanish civil war. Nevertheless, Britons having lived in Spain for years and complying with all the legal requirements to become Spanish nationals, after many years of having benefitted from free movement under EU law as EU citizens, must make the tragic choice between their British passport or their EU citizenship.
This approach is unfair, it is discriminatory and it undermines the constitutional rationale of Article 50 TEU, read together with Article 20 TFEU. If Member States have a duty under EU law not to provoke a legal or de facto deprivation of the status of EU citizenship of a national of a Member State, they should also be precluded from introducing discriminatory and disproportionate conditions to facilitate those nationals to continue being EU citizens.
Wightman paves the way for an active stance of Member States in the protection of EU citizens, particularly of those who reside in the territory and are about to lose their EU citizenship against their will. In some cases, these EU citizens will lose their status without even having the chance to express their democratic will. Most of the Britons with a right to claim nationality of a Member State had lost their right to vote in the 2016 referendum and their voice was unheard at the time. They lost such right because they had previously made use of the free movement rights that the Treaties granted to them. Therefore, it is fair for EU law to now give a helping hand, and preclude Member States from inflicting on these EU citizens an irreparable loss. A loss that is unwanted, not consulted and in breach of the values enshrined in Article 2 TEU.
And this is another unreflected outcome of the Wightman ruling. Brexit is not only about States and the Union. It is also about people. And mostly about EU citizens being stranded in the limbo of a shambolic catastrophe that the UK insists on inflicting on itself and its peoples.