The appeal, brought by the state of the Netherlands, is said to have been allowed due to the ‘controversial’ nature of the case.
However the Dutch barrister leading the case, Christiaan Alberdingk Thijm, told Connexion: “It is not normal to appeal a referral [to the ECJ] and there is no precedent for this in the Netherlands”. He added that Danish and Belgian courts had previously said such appeals were inadmissible.
As we reported online and in the March issue of The Connexion lawyers and campaigners seeking a ruling on whether Britons’ EU citizenship can survive Brexit had been upbeat when the Amsterdam District Court decided to refer a question to the ECJ. The ruling included asking whether, if Brexit did not mean automatic loss of EU citizenship, any conditions or restrictions should be imposed on maintaining it. The referral decision resulted from court action which argued that the state of the Netherlands (and other EU states) was wrong in assuming in the Brexit negotiations that Britons’ EU citizenship would automatically be lost.
Maintaining EU citizenship would mean automatic rights of Britons in France to ongoing residency, to work and run businesses and to access social security rights more easily than non-EU étrangers would all be maintained, whether there is a favourable Brexit deal or not and with no need to apply for a residence card. They would also be able to continue doing fonctionnaire jobs such as being state schoolteachers, or sitting as local councillors, and would maintain their mairie and EU election votes.
British barrister Jolyon Maugham, who is backing the case, previously told Connexion: “If the point wasn’t arguable the judge wouldn’t have referred it – and he is a senior figure who was formerly a judge in the Dutch constitutional court.” He added: “Other cases in the ECJ have talked about the fact that EU citizenship is a real thing and gives rights in addition to those that come from national citizenship. If it was purely a result of national citizenship [of an EU state], there would be no need for it.”
However in an unexpected twist, the judge in the case has now agreed to a request to appeal to the country’s court of appeal against the referral.
The state of the Netherlands argued that the Amsterdam judge would not in any case be allowed to come to a decision on the legal future of the plaintiffs (who are British citizens in Holland) while the Brexit negotiations are ongoing and also said the questions asked of the ECJ were too ‘hypothetical’.
The British citizens and their lawyer have asked for a fast-track treatment of the appeal but this is expected to mean a delay of up to two months.
Campaign group Brexpats: Hear Our Voice, whose members include one of the plaintiffs in the case, say people who contributed to crowd-funding for the ECJ case have been informed that their donations will not be collected but were invited to make a matching contribution to a new appeal at crowdjustice.com This has already met its target of £60,000.