Case C‑673/20
EP
v
Préfet du Gers
and
Institut National de la Statistique et des Études Économiques (INSEE)
(Request for a preliminary ruling from the Tribunal judiciaire d’Auch)
Judgment of the Court (Grand Chamber), 9 June 2022
(Reference for a preliminary ruling – Citizenship of the Union – National of the United Kingdom of Great Britain and Northern Ireland residing in a Member State – Article 9 TEU – Articles 20 and 22 TFEU – Right to vote and to stand as a candidate in municipal elections in the Member State of residence. – Article 50 TEU – Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community – Consequences of the withdrawal of a Member State from the Union – Removal from the electoral roll in the Member State of residence – Articles 39 and 40 of the Charter of Fundamental Rights of the European Union – Validity of Decision (EU) 2020/135)
1. Citizenship of the Union – Provisions of the Treaty – Nationality of a Member State – Withdrawal of the United Kingdom from the European Union and Euratom – Consequences – Loss of status as a citizen of the European Union – United Kingdom nationals who exercised their right to reside in a Member State before the end of the transition period – Loss of the right to vote and to stand as a candidate in municipal elections in their Member State of residence – Nationals deprived of the right to vote in the United Kingdom by virtue of the law of that State – Irrelevant
(Arts 9 and 50(1) and (3) TEU; Arts 18, first para., 20(1) and (2)(b), 21, first para. and 22 TFEU; Charter of Fundamental Rights of the European Union, Arts 39 and 40; Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community, Arts 2(e), 3(1), 10(a) and (b), 13 to 39, 126, 127(1)(b) and 185, fourth para.)
(see paragraphs 46-52, 55-61, 66-75, 80, 81, 83, operative part 1)
2. Member States – Withdrawal from the European Union – Decision of a Member State to initiate the withdrawal procedure – Unilateral nature – Procedure – Effects
(Art. 50(1), (2) and (3) TEU)
(see paragraphs 53, 54)
3. Questions referred for a preliminary ruling – Jurisdiction of the Court – Acts of the institutions – Request for examination of the compatibility with the Treaties of an international agreement concluded by the European Union – Admissibility
(Art. 19(3)(b) TEU; Art. 267, first para., (b) TFEU)
(see paragraphs 84, 85)
4. Citizenship of the Union – Provisions of the Treaty – Nationality of a Member State – Withdrawal of the United Kingdom from the European Union and Euratom – Decision 2020/135 – Validity – United Kingdom nationals who exercised their right to reside in a Member State before the end of the transition period – Lack of the right to vote and to stand as a candidate in municipal elections in their Member State of residence – Breach of principle of proportionality – None – Nationals deprived of the right to vote in the United Kingdom by virtue of the law of that State – Irrelevant
(Arts 9 and 50(1) and (3) TEU; Arts 18, 20(2)(b), 21 and 22 TFEU; Charter of Fundamental Rights of the European Union, Art. 40; Council Decision 2020/135)
(see paragraphs 91-102, operative part 2)
Résumé
EP, a United Kingdom national residing in France since 1984, was removed from the French electoral roll following the entry into force, on 1 February 2020, of the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community (‘the Withdrawal Agreement’). (1)
EP challenged that removal before the tribunal judiciaire d’Auch (Court of Auch, France) on the ground that she was no longer entitled to vote either in France, on account of the loss of her status as a citizen of the Union following the withdrawal of the United Kingdom from the Union, or in the United Kingdom, on account of the fact that she no longer enjoyed the right to vote and to stand as a candidate in that State. (2) According to EP, that loss infringes the principles of legal certainty and proportionality and also constitutes discrimination between Union citizens and an infringement of her freedom of movement.
The referring court considers that the application of the provisions of the Withdrawal Agreement to EM constitutes a disproportionate breach of her fundamental right to vote. It asks in that regard whether Article 50 TEU (3) and the Withdrawal Agreement must be interpreted as repealing the EU citizenship of nationals of the United Kingdom, who, while remaining nationals of that State, have resided in the territory of another Member State for more than 15 years and are, accordingly, deprived entirely of the right to vote. If that question is answered in the affirmative, it asks to what extent the relevant provisions of the Withdrawal Agreement (4) and of the TFEU (5) must be regarded as allowing such nationals to retain the rights to EU citizenship that they enjoyed before the withdrawal of the United Kingdom from the Union. It also raises a question concerning the validity of the Withdrawal Agreement and, accordingly, the validity of Council Decision 2020/135 on the conclusion of that agreement. (6)
In its judgment, the Court holds, first, that the relevant provisions of the TEU (7) and of the TFEU, (8) read in conjunction with the Withdrawal Agreement, must be interpreted as meaning that, as from the withdrawal of the United Kingdom from the European Union, nationals of that State who exercised their right to reside in a Member State before the end of the transition period laid down in that agreement no longer enjoy the status of citizen of the Union. More particularly, they no longer enjoy the right to vote and to stand as a candidate in municipal elections in their Member State of residence, including where they are also deprived, by virtue of the law of the State of which they are nationals, of the right to vote in elections held by that State. Second, the Court has not identified any factor capable of affecting the validity of Decision 2020/135.
Findings of the Court
In the first place, the Court recalls that Union citizenship requires, in accordance with Article 9 TEU and Article 20(1) TFEU, possession of the nationality of a Member State and that there is an indissociable and exclusive link between the possession of the nationality of a Member State and the acquisition, and retention, of the status of citizen of the Union.
A series of rights attaches to Union citizenship, (9) including the fundamental and individual right to move and reside freely within the territory of the Member States. In particular, as regards Union citizens residing in a Member State of which they are not nationals, those rights include the right to vote and to stand as a candidate in municipal elections in the Member State where they reside, a right which is also recognised by the Charter of Fundamental Rights of the European Union. (10) By contrast, none of those provisions enshrines that right for nationals of third States. Consequently, the fact that an individual has, where the State of which he or she is a national used to be a Member State, exercised his or her right to move and reside freely in the territory of another Member State is not such as to enable him or her to retain the status of citizen of the Union and all the rights attached thereto by the TFEU, if, following the withdrawal of his or her State of origin from the European Union, he or she no longer holds the nationality of a Member State.
In the second place, the Court recalls that, by virtue of its sovereign decision, taken under Article 50(1) TEU, to leave the European Union, the United Kingdom has no longer been a member of the European Union since 1 February 2020, so that its nationals now have the nationality of a third State and no longer that of a Member State. The loss of the nationality of a Member State entails, for any person who does not also hold the nationality of another Member State, the automatic loss of his or her status as a citizen of the Union. Accordingly, that person no longer enjoys the right to vote and to stand as a candidate in municipal elections in his or her Member State of residence.
In that regard, the Court states that, since the loss of Union citizenship for a United Kingdom national is an automatic consequence of the United Kingdom’s sovereign decision to withdraw from the European Union, neither the competent authorities of the Member States nor their courts may be required to carry out an individual examination of the consequences of the loss of the status of Union citizens for the persons concerned, in the light of the principle of proportionality.
In the third place, the Court notes that the Withdrawal Agreement contains no provision which maintains, beyond the withdrawal of the United Kingdom from the European Union, in favour of United Kingdom nationals who have exercised their right to reside in a Member State before the end of the transition period, the right to vote and to stand as a candidate in municipal elections in their Member State of residence.
Although that agreement sets out the principle of maintaining the applicability of EU law in the United Kingdom during the transition period, Article 127(1)(b) of that agreement however expressly excludes, by way of derogation from that principle, the application in the United Kingdom and in its territory of the provisions of the TFEU and the Charter (11) relating to the right of citizens of the Union to vote and to stand as a candidate in the European Parliament and in municipal elections in their Member State of residence during that period. Admittedly, the wording of that exclusion refers to the United Kingdom and ‘the territory of that State’ without expressly referring to its nationals. However, having regard to Article 127(6) of the Withdrawal Agreement, that exclusion must be understood as also applying to United Kingdom nationals who exercised their right to reside in a Member State in accordance with EU law before the end of the transition period. The Member States were therefore no longer required, as from 1 February 2020, to treat United Kingdom nationals residing in their territory as nationals of a Member State as regards the grant of the right to vote and to stand as a candidate in elections to the European Parliament and in municipal elections.
An interpretation to the contrary of Article 127(1)(b) of the Withdrawal Agreement, consisting of limiting the application of that agreement solely to the territory of the United Kingdom and therefore solely to Union citizens who resided in that State during the transition period, would create an asymmetry between the rights conferred by that agreement on United Kingdom nationals and Union citizens. That asymmetry would be contrary to the purpose of that agreement, which is to ensure mutual protection for citizens of the Union and for United Kingdom nationals who exercised their respective rights of free movement before the end of the transition period.
As regards the period, which began at the end of the transition period, the Court notes that the right of United Kingdom nationals to vote and to stand as a candidate in municipal elections in the Member State of residence does not fall within the scope of Part Two of the Withdrawal Agreement, which lays down rules designed to protect, after 1 January 2021, on a reciprocal and equal basis, Union citizens and United Kingdom nationals (12) who exercised their rights to freedom of movement before the end of the transition period.
Finally, the first paragraph of Article 18 TFEU and the first paragraph of Article 21 TFEU, (13) which the Withdrawal Agreement renders applicable during the transition period and subsequently, cannot be interpreted as requiring Member States to continue to grant, after 1 February 2020, to United Kingdom nationals who reside in their territory the right to vote and to stand as a candidate in municipal elections held in that territory which they grant to Union citizens.
In the fourth and last place, as regards the validity of Decision 2020/135, the Court holds that that decision is not contrary to EU law. (14) In particular, there is no factor that permits the view that the European Union, as a contracting party to the Withdrawal Agreement, exceeded the limits of its discretion in the conduct of external relations, by not requiring that a right to vote and to stand as a candidate in municipal elections in the Member State of residence be provided for United Kingdom nationals who exercised their right to reside in a Member State before the end of the transition period.