BREXIT: REJECTION OF REQUEST FOR CANCELLATION OF THE OPENING OF NEGOTIATIONS FROM BRITISH CITIZENS RESIDING IN EU MEMBER STATES (OUT OF THE UK)
Judgment of the GCEU, 9th Chamber, 26 November 2018 (Case T-458/17), Harry Shindler e.a. v / Council of the European Union
The General Court of the European Union (GCEU) ruled that British citizens residing in other Member States than the United Kingdom are not entitled to seek the annulment of the decision of the Council of the European Union to start EU exit negotiations following the Brexit referendum because that decision does not produce binding legal effects likely to affect the interests and the legal situation of these citizens.
In this case, thirteen British citizens residing in EU Member States other than the United Kingdom had brought an action for annulment before the GCEU against the decision of the Council of the European Union authorizing the opening of negotiations on Brexit.
According to these thirteen applicants, the decision to open the negotiations had to be annulled on the grounds that – (i) it had a direct impact on the rights conferred upon them as European citizens by virtue of the European Treaties and that (ii) no constitutional authorization (Article 50 of the EU Treaty provides for the possibility for a Member State to withdraw from the Union on the basis of a unilateral decision taken under its constitutional rules) had been granted in respect of that decision withdrawal from the UK.
The EU Council had asked the GCEU to declare the action inadmissible since the applicants had no interest or standing to act against that contested decision because it was not intended for them and did not legally affect them.
In its judgment, the GCEU first examined whether the conditions of admissibility for an action for annulment had been fulfilled or not. It followed from this examination that the decision to open the negotiations has no direct effect on the applicants’ legal situation and does not affect them because they live in other Member States than the UK.
Moreover, the GCEU emphasized that the opening decision is only a preparatory act which does not make it possible to prejudge what will happen to the rights enjoyed by the British citizens (irrespective of their Member State of residence) in accordance with the European treaties. Finally, the GCEU ruled that it is not up to the EU institutions to verify whether or not a Member State that decides to leave the Union does so in accordance with its constitutional rules or not.
