The General Court of the European Union ruled inadmissible the application of thirteen British citizens residing in several Member States to annul the decision of the European Union Council authorising the opening of Brexit negotiations, in a judgement delivered on Monday 26 November (Case T-458/17), following an extraordinary European summit which validated the British withdrawal agreement and established the framework for EU/Post Brexit United Kingdom relations (see EUROPE 12145).
The applicants claim that they were deprived, on account of their expatriation, of the right to vote in the referendum of June 2016, which asked the British about their wish to remain in the Union, and that the contested decision has a direct impact on the rights which they derive from the Treaties.
They also assert that the contested decision does not include the objective of ensuring that they maintain their status as EU citizens. According to them, this action before the General Court is their sole effective form of remedy before the EU Courts before the inescapable loss of their status as EU citizens which will take place at the time of the Brexit, on 29 March 2019.
On the contrary, the Council considers the action inadmissible, since the contested decision is not open to challenge by natural or legal persons and does not affect the applicants’ legal situation.
The decision, a preparatory act, draws the consequences of the UK’s notification of its intention to withdraw, as London activated the procedure provided for in Article 50 of the Treaty on 29 March 2017 (see EUROPE 11757). It is only at the end of the so-called 'Article 50' procedure that that the rights of the applicants are liable to be affected.
In its judgement, the the General Court ruled in favour of the Council. It notes that the applicants are not direct addressees of the disputed act and that it does not directly affect their legal situation.
The Council Decision authorising the opening of the Brexit negotiations has legal effects as regards the relations between the EU and its Member States and between the EU institutions, in particular the European Commission, which is authorised by that decision to open negotiations for an agreement with the United Kingdom.
For the the General Court, the applicants' status as citizens of the Union, their right to vote in European and municipal elections, their right to respect for their private and family life, their freedom to move, reside and work, their right to own property and their right to social security benefits are not directly affected by the contested Council decision.
The European judge nevertheless acknowledges that this could be the case when Brexit is effective, whether or not a withdrawal agreement can be concluded. However, at the present time, it is not possible to assess the consistency or scope of the rights that will be affected.
Finally, as regards the existence of other effective means of redress, the Court points out that judicial review of compliance with the EU legal order is ensured not only by the Court of Justice, itself and the courts and tribunals of the Member States. The act by which the United Kingdom notified the European Council of its intention to withdraw from the Union and the fact that certain British citizens did not have the right to vote in the June 2016 referendum were open to challenge before a United Kingdom court, he stressed. (Original version in French by Mathieu Bion)