It’s the end – but the moment has been prepared for: the CJEU confirms that UK citizens have lost EU citizenship

 

Professor Steve Peers, University of Essex

In today’s judgment, the CJEU has finally confirmed that UK citizens lost EU citizenship as a consequence of Brexit, following the earlier Advocate-General’s opinion, which I discussed here. (There are other pending cases on this issue – see my compilation of Brexit litigation – but there’s no reason to think that the CJEU would decide them differently).

The judgment is striking for the extent to which it dismisses arguments that British citizens have retained EU citizenship. It’s definitely the end of an era. And yet, it also contains foreshadowing of issues that will be relevant to the post-Brexit future relationship between the UK and the EU.

 

Summary of the judgment

The case concerned a UK citizen resident in France, who lost the right to vote in local elections following Brexit day (1 February 2020) as a consequence of no longer being a national of a Member State, and therefore no longer having the right to vote in local elections. She challenged her removal from the electoral roll on the grounds that she could no longer vote in the UK (as she had been abroad more than 15 years), and a French court asked the CJEU questions about the interpretation of EU law and the validity of the EU Council decision to conclude the withdrawal agreement.  In the UK citizen’s view, the loss of EU citizenship status ‘cannot be an automatic consequence of the United Kingdom’s withdrawal from the European Union’, because ‘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’.

However, the Court began by observing that ‘citizenship of the Union requires possession of the nationality of a Member State’, by reference to the Treaty provisions which say just that. In the Court’s view, ‘the authors of the Treaties thus established an inseparable and exclusive link between possession of the nationality of a Member State and not only the acquisition, but also the retention, of the status of citizen of the Union’ (emphasis added). The Court placed its prior case law holding that EU citizenship ‘is destined to be the fundamental status of nationals of the Member States’ in that context. It also noted that in the various Treaty provisions on EU citizens’ rights, ‘none of those provisions enshrines that right in favour of nationals of a third State’.

It then agreed with the Commission’s argument that there was no exception from those who moved within the EU: the exercise of free movement rights is ‘consequently, 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 FEU Treaty 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’.

Secondly, the Court reiterated prior case law that the UK chose to leave unilaterally, ‘in accordance with its own constitutional requirements’, and that the leaving Member State is not ‘required to take its decision in concert with the other Member States or with the EU institutions’: ‘[t]he decision to withdraw is for that Member State alone to take, in accordance with its constitutional requirements, and therefore depends solely on its sovereign choice’. Having left the EU in accordance with Article 50, the UK ‘is no longer, as from’ the date of entry into force of the withdrawal agreement, ‘a Member State’. It followed that ‘as from 1 February 2020, United Kingdom nationals no longer hold the nationality of a Member State, but that of a third State’. And ‘possession of the nationality of a Member State is an essential condition for a person to be able to acquire and retain the status of citizen of the Union and to benefit fully from the rights attaching to that status. The loss of nationality of a Member State therefore entails, for the person concerned, the automatic loss of his or her status as a citizen of the Union’ (emphasis added). Being ‘nationals of a third State as from 1 February 2020’, UK citizens ‘lost the status of a citizen of the Union as from that date’, so ‘no longer enjoy’ voting rights in local elections. ‘It is irrelevant, in that regard, that United Kingdom nationals have previously exercised their right to reside in a Member State’.

Was the loss of EU citizenship disproportionate? In the Court’s view, this was ‘an automatic consequence of the sole sovereign decision taken by the United Kingdom to withdraw from the European Union’; and the 15-year rule ‘is a choice of electoral law made by that former Member State, now a third State’. There was no need to carry out an ‘individual examination’ of the loss of citizenship: here the Court distinguished Brexit from its prior case law in which it ruled that loss of EU citizenship resulting from a Member State depriving a person of its nationality in individual cases needed to be justified – as distinct from (again) ‘the automatic result of a sovereign decision made by a former Member State, under Article 50(1) TEU, to withdraw from the European Union and thus to become a third State with respect to the European Union’. So ‘case-law arising from those various judgments cannot therefore be applied to a situation such as that in the main proceedings’.

The Court then dismissed a more technical argument that the withdrawal agreement must be interpreted to mean that voting rights in local elections for British citizens were retained. (In fact, the provisions on the transition period expressly excluded the application of this right). The Court observed that the argument being made ‘would create an asymmetry between the rights conferred by that agreement on United Kingdom nationals and Union citizens’, which it ruled was ‘contrary to the purpose of that agreement’, as the preamble stated the objective of ensuring ‘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’.

Similarly, the Court noted that after the end of the transition period, the citizens’ rights Part of the withdrawal agreement (discussed here) ‘lays down…rules designed to protect, on a reciprocal and equal basis, the situation of citizens of the Union and that of United Kingdom nationals…who exercised their rights to freedom of movement before the end of the transition period.’ It stated that ‘[t]he purpose of those rules, which apply…as from the end of the transition period, is…to ensure reciprocal protection for Union citizens and United Kingdom nationals….those rules concern the rights connected with residence, the rights of employed and self-employed persons, professional qualifications and the coordination of social security systems.’ But the citizens’ rights part did not retain voting rights after the end of the transition period either. The prohibition on discrimination on grounds of nationality in the withdrawal agreement only applied to citizens’ rights listed in the agreement – which did not include voting rights. Yet again, the Court noted that the deprivation of this right followed from ‘the United Kingdom’s sovereign decision to withdraw from the European Union’. Various rights in the EU Treaties equally did not help, because (again) UK citizens ‘are no longer nationals of a Member State’.

The Court did, however, note that Member States retain a right ‘to grant, under conditions which they lay down in their national law, a right to vote and to stand as a candidate to nationals of a third State residing in their territory’. (A number of Member States and the UK have indeed to some extent retained voting rights in local elections).

Next, the Court turned to questions about the validity of the Council’s decision to conclude the withdrawal agreement. It confirmed prior case law that it had the jurisdiction to examine whether treaties which the EU has concluded are ‘compatible with the Treaties and with the rules of international law which, in accordance with the Treaties, are binding on the Union’, although in that context it could only rule on whether the EU decision concluding the treaty was valid, not whether the treaty itself was valid. However, the Court ruled that arguments about voting in European Parliament elections, and EU citizens voting in the UK, were irrelevant – focussing on the issue litigated in the national court (UK citizens voting in the EU).

The Court dismissed all the arguments that the decision to conclude the withdrawal agreement was invalid. Again, various Articles of the EU Treaties were not relevant, because as Article 50 says, the Treaties have ‘ceased to apply to the United Kingdom from the date of entry into force of that agreement’, therefore UK nationals ‘no longer hold, as from that date, the nationality of a Member State but that of a third State. It follows that, as from that date, they are no longer citizens of the Union.’

As for the principle of proportionality, the Court took the view that:

there is nothing in the documents before the Court to suggest 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, in that agreement in general or in Article 127 thereof in particular, 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.

It reiterated prior case law that ‘the EU institutions enjoy broad discretion in policy decisions in the conduct of external relations’ and noted that:

In the exercise of their prerogatives in that area, those institutions may enter into international agreements based, inter alia, on the principle of reciprocity and mutual advantages. Thus, they are not required to grant, unilaterally, third-country nationals rights such as the right to vote and to stand as a candidate in municipal elections in the Member State of residence, which, moreover, is reserved solely to Union citizens….

Therefore the EU Council ‘cannot be criticised for’ concluding the withdrawal agreement without ensuring a continued right to vote for UK citizens in local EU elections.  And again, the loss of a voting right in the UK under the 15-year rule was a decision by the UK, not attributable to the EU.

 

Comments

The judgment is very similar to the Advocate-General’s opinion, although it does not include the point in the opinion that Member States chose not to confer on the EU the power to determine who can become an EU citizen. I don’t think this means it’s likely that the Court would rule, if asked somehow, that the EU does have such power; its judgment implicitly suggests there’s no such power (as the judgment confirms that EU citizenship is exclusively for nationals of Member States). In any event, there’s no sign that the EU institutions and Member States have any interest in unilaterally creating some form of EU consolation citizenship for Brits. The excited suggestion of one MEP to this end is not a source of EU law.

Nor does the judgment repeat the opinion’s observation that the applicant could simply obtain French citizenship, or the explicit conclusion that the applicant had no legitimate expectation to the retention of EU citizenship (although one might conclude that the Court implicitly rejects this when it attributes the responsibility for the consequences of withdrawal to the UK).

The centre-piece of the Court’s judgment is the simple linguistic interpretation of the Treaties: EU citizenship is conferred upon nationals of Member States; the UK is no longer a Member State; therefore UK nationals are no longer citizens of the Union. The Court does not explicitly address the argument that the Treaties only provide rules on the acquisition of EU citizenship, but not its loss; but it implicitly rejects them by ruling that the loss of EU citizenship follows from the withdrawal from the EU. In my view, this line of argument is unfounded because it imports words into the Treaties that don’t exist: there’s no wording in the definition of EU citizenship in the Treaties to suggest that this is solely a rule on how that citizenship is acquired. And it’s reasonable to deduce that there’s no need for an explicit provision on the loss of EU citizenship, because Article 50 covers that ground by necessary implication. Also, a key means of how EU citizenship is acquired in practice is by accession to the EU – which the withdrawal process mirrors. So the more logical comparison is between the collective, not the individual, acquisition and loss of EU citizenship.  

Also, the Court is keen to point out that the consequences of the loss of EU citizenship follow from the UK’s sovereign decision to leave the EU. This is consistent with prior CJEU case law (see Wightman and Shindler, discussed here and here). It again points out (and some Remainers seem unwilling to accept this) that the process of leaving the EU is up to the national law of the Member State choosing to leave, with no approval from the EU required (the notion that the EU ‘shouldn’t have let the UK leave’, or should somehow consider various facts – still less wild allegations – about the process of leaving, is obviously unfounded). In this context, it is worth remembering that some on the Leave side were prone to misleading or false comments about the impact for Brits of leaving the EU: for instance, this infamous tweet by the current Prime Minister (‘Brexit will make no difference’).

The Court does knock on the head the attempt to rely on the previous case law on the loss of EU citizenship (Rottmann, Tjebbes and Wiener Landesregierung – see discussion here), because they all concern the loss of EU citizenship via means of loss of nationality of a Member State. In fact, those judgments reinforce, not contradict, the logic of today’s ruling – that there is an inextricable link between EU citizenship and nationality of a Member State.

Today’s judgment is the end of the assumption – strongly held by many – that EU citizenship is a status conferred upon individuals, not a status linked to a state’s membership of the European Union. There’s certainly an argument that EU citizenship should be based on the former approach, the wording of the Treaties (as the judgment confirms) points inescapably to the latter. Member States simply did not choose to create a status of EU citizenship independently from that of nationality of a Member State.

Finally, though, there are interesting nods to the post-Brexit future in the Court’s judgment. Although it does not mention the possible relevance of EU law on long-term resident non-EU citizens (on which, see here as regards its application to Brits, and here and here as regards proposals for reform), it goes out of its way to mention the citizens’ rights provisions of the withdrawal agreement, which now govern the position of those EU citizens who moved to the UK, and UK citizens who moved to the EU, before the end of the transition period. In this context (and other contexts), it mentions the importance of reciprocity in EU external relations – implicitly echoing the concerns of those who thought that arguments for Brits to retain EU citizenship, like some demands made by Leave supporters, sought to ‘have their cake and eat it too’. The Court also notes that the EU institutions have great political discretion in external relations. Time will tell whether, if UK/EU relations deteriorate still further, this might come to be seen as ‘the gun in the first act’.

Photo: Garry Knight, via Wikimedia commons

 

European Democracy Action Plan – an Overview

 

 

Professor Lorna Woods, University of Essex

The European Democracy Action Plan (EDAP) (COM(2020)790 final) is part of a suite of measures all potentially affecting the online environment; indeed, it is one of the major initiatives announced in the agenda set by Commission President von der Leyen.  The Digital Services Act (DSA) and Digital Markets Act (DMA) are also eagerly expected (probably just before Christmas so everyone is too distracted really to comment).  As well as reflecting the shift in some of the underlying assumptions about the approach to the Internet, these measures also challenge our understanding of what we expect the EU to do and where the limits to its (legislative) competence lies.

 The backdrop to EDAP is the importance of democracy as well as human rights and the rule of law, hot topics at the moments and ones on which there is now apparently no easy consensus to be had.  The Communication starts by recognising the challenges that the institutions of democracy have been under threat and that matters have been made worse by COVID-19.  It also notes the importance of trying to ensure that there is a coherent approach between internal activities and external actions in this context – although the Union’s competence varies in this regard. The UK will of course form part of the external environment.  EDAP provides a ‘reinforced EU policy framework’ which includes specific measures aimed at 

-          Promoting free and fair elections and strong democratic participation;

-          supporting free and independent media; and

-          countering disinformation.

 At the same time, the action plan relies heavily on ‘empowering citizens and civil society to counter the threats’. 

Democratic Participation

 There are four elements to this theme: 

-          transparency of political advertising and communication;

-          financing of European political parties;

-          cooperation to ensure free and fair elections; and

-          democratic engagement beyond elections.

 Political Advertising

There is, apparently, wide recognition of the risk of interference in elections, and the use of social media in this regard is central.  While the Communication recognises that some of the issues in this area may well fall within the GDPR already, it states that is will present a legislative proposal on the transparency of sponsored political content to sit alongside the rules relating to online advertising in the proposed DSA (with the aim that these rules be in place by the next EP elections).  While little can be divined from one sentence, it is clear that there will be much heartache about which material falls within the rules.  Note, for example, that the target of the measure will be ‘sponsored’ (is this payment for the content to be carried or might it cover financial relationships more broadly) or ‘political content’ (so presumably not limited to content that is understood as being an advert). Further, subjects of the regulation are proposed not to be limited to ‘sponsors’ but to those in production/distribution channels (including agencies and political consultancies) as well – of course – as the platforms themselves (though we do not yet know what precisely is a platform – does it include a search engine?).  Interestingly, these rules do not seem intended to run just through election periods because the Communication also states that the Commission will investigate whether further/better rules would be needed during these periods.  Key elements of the proposal seem to relate to putting in place transparency requirements to allow accountability, auditability, as well as tools related to information flow rather than content-based rules (for example, labelling, record-keeping, transparency of targeting and amplification criteria); the shift away from rules targeting specific types of content can be seen elsewhere too. The Communication also flags the possibility of co-regulatory codes (and supervisory authority).  

Funding of European Political Parties

Funding of European political parties is governed by EU; the Commission envisages a review on the legislation (Regulation 1141/2014 on the statute and funding of European political parties) in this area. 

Strengthened Cooperation to ensure free and fair elections

Elections are mainly a matter of Member State competence albeit with influence in some aspects from EU law (notable data protection).  The Commission’s role in this context would be to facilitate cooperation between Member States based on the existing European cooperation network on elections.  Possible activities include an online forum, joint training, pooled resources and expertise, as well as online monitoring capabilities.  The Communication also suggests that these processes and their administration could fall within critical infrastructure regimes (e.g. Regulation (EU) 2019/452 establishing a framework for the screening of foreign direct investments into the Union); again, this seems part of a more expansive view of critical infrastructure. 

Beyond technical security and the possibilities of e-voting, the Communication raises the issue of balanced media coverage during elections (a matter at the least outwith legislative competence), identifying the European Regulators Group for Audiovisual Media Services (ERGA) set up under the Audiovisual Media Services Directive (AVMSD) as relevant. In passing it may be noted that this is the body with the independent national supervisory authorities on it (see Article 30b AVMSD) rather than the Contact Committee.  The Contact Committee may include representatives from the Member States’ governments. There is the potential for a competence question for ERGA  here. Its tasks are set out in Art 30b(3) AVMSD, but while it is to provide technical expertise on ‘matters related to audiovisual media services within its competence’, it is not clear what ERGA’s competence actually is. Certainly, matters within the AVMSD would fall within remit, but balanced media coverage is not a matter covered by the directive. 

The Communication also draws links with external relations in the context of elections, referring to the Council of Europe, UNESCO and the OSCE with the aim of sharing best practice. 

Promoting democratic engagement 

The EU has long struggled with citizen engagement – what used to be described as being part of the democratic deficit.  Much of what the Communication proposes here has links to matters covered by the 2020 Citizenship Report and its Rule of Law Report as well as the 2020-2025 Gender Equality Strategy (COM(2020)152); the EU Youth Strategy (2019-2027); the EU anti-racism action plan 2020-2025 (COM(2020)565).  As such, this Communication seems to function as a basket into which a range of pre-existing strategies can be put, a theme which is seen elsewhere in the Communication too. 

More concretely, the Communication puts forward proposals with regard to tackling online hate speech, dealt with on a voluntary basis through the Code of Conduct on Tackling Illegal Hate Speech. The list of EU crimes (Article 83(1) TFEU) will be extended to include hate crime and hate speech (though it is not clear from this which characteristics might be protected – would the intention be to cross refer to those listed in Article 21 EU Charter on Fundamental Rights, as in the AVMSD?).  Of course, this to some extent may become superfluous in the light of the DSA which, one might hope, would at least have hate speech within scope. 

Media Freedom 

The Communication identifies two main aspects to media freedom and pluralism: 

-          the online and physical safety of journalists, as well as protection from abusive litigation (anti-SLAPP);

-          the impact of the role of platforms as digital gatekeepers (and absorbers of advertising revenue). 

Safety of Journalists 

Impunity for threats against journalists has long been a problem and has been the subject of much debate for at least a decade.  The Commission proposes to add to the dialogue through the European News Media Forum that it will establish, together with proposing a recommendation on the safety of journalists (to add to the various recommendations and declarations put forward by a phalanx of international human rights bodies). Of course, the EU is limited in terms of what it can do in terms of law internally in this field; externally, it proposes monitoring and public diplomacy.  The provision of funding to support journalists (e.g. for legal aid and shelters for those in need) seems more likely to have concrete effects. 

Anti-SLAPP and Professional Standards 

Strategic lawsuits against public participation (SLAPPS) are noted as being a technique to harass journalists and others working in the public interest; this forms part of an increasingly hostile environment.  SLAPPS take place within the Member States’ own national legal systems, though the Communication notes that they may have cross border effects, with risk of forum shoppping and  increased complexity for a defendant (the impact of such actions and the countervailing interest in providing individuals with protection for their legitimate personality rights has not been fully considered in the context of the free movement of services and whether any such rules constitute a restriction). Some of this relates to areas where there is existing EU law: the Communication notes the evaluation of Rome II and Brussels Ia Regulations. A new initiative is planned in preparation for which the Commission is carrying out a mapping study. The Commission will set up an expert group on SLAPPs. 

The Commission aims to promote stronger cooperation between media self-regulation bodies (presumably this is aimed at the press or the journalists themselves as television broadcasting and the like is regulated by virtue of the AVMSD). 

Additional Support 

The Communication notes the 2018 revision of the AVMSD requires transparency of media ownership. Note that while Art 5(1) revised AVMSD requires the provision of a service providers name, contact details and the Member State under the jurisdiction of which it operates (similar to requirements in the e-Commerce Directive as regards information service providers), the requirement on Member States to oblige media service providers to give further information regarding their beneficial owners and ownership structure is optional.  This is a potentially significant gap and may disappoint some groups who have campaigned for more transparency in this regard. 

In terms of ownership, there is a plan to analyse national rules on media diversity and media concentration, against a backdrop of the role of online platforms. There is no intention to legislate at Union level (the attempt to do so from the 1990’s sinking on the rock of EU competence); instead, the aim is to coordinate within a range of existing tools: competition law, freedom of establishment and the revised AVMSD (which contains more provisions expressly permitting Member States to take action on certain issues, for example the prominence of public service content).  The Communication does not consider whether media services (or some of them) should be considered from the perspective of national security and the protection of critical national infrastructure.  The Communication notes the need for (financial) support on the part of the Member States, but also underlines the fact that this would have to comply with the State Aid rules.  There have been many decisions on such support – to the press as well as to public service broadcasters – but the Council has invited the Commission to consider these rules in relation to the press sector (whatever is comprised under that heading).  Nonetheless, this still leaves a potential weakness in that the deployment of support seems to be a matter of individual Member State choice. 

The Communication also highlights the importance in some Member States of state advertising (and this importance has been noted elsewhere, its withdrawal being seen as an interference with media speech by some international human rights bodies). EDAP suggests that transparent rules and fair criteria for the allocation of such advertising could mitigate the risks in this area; it also draws attention to the public procurement strategy.  To a certain extent this maps on to issues dealt with by the Media and Audiovisual Action Plan (launched the same day as EDAP), key themes of which are about supporting the media and by tackling the segmentation of the European market. Comprising three main strands of activity (Recover, Transform and Empower), the Media and Audiovisual Action Plan contains no immediate or specific legislative proposals, a section deals with looking at the implementation of the revised AVMSD. 

Countering Disinformation 

Often documents talking about disinformation start by distinguishing between disinformation and misinformation and stating that we should not really use the term ‘fake news’.  The Communication spares us the latter point and, drawing on work from the Carnegie Endowment for International Peace, adds to the classification so it now comprises four elements: 

-          misinformation

-          disinformation

-          information influence operation

-          foreign interference in the information space.

These may each require different treatment (though the boundaries between the categories may not be easy in practice to draw or maintain) and the possibility of introducing oversight may give rise to concerns in some quarters in relation to freedom of expression. Whether such a concern is justified is another question.  The proposals seem to draw on existing initiatives in this field but emphasise certain factors in the online environment which give rise to or exacerbate problems: manipulative amplification of harmful content; the economic incentives for spreading disinformation; and the lack of costs for foreign actors seeking to engage in influence operations. These activities are stated not to “interfere with people’s right to express opinions or to restrict access to legal content” [p 19]. This may link to the distinction between have the ability to air certain views and the way that content is promoted/how easy it is to find. The Communication also notes the importance of fact-checking.  

The actions in this section fall into three categories:

-          capacity building;

-          obligations and accountability in re platforms; and

-          empowering citizens.

 Capacity Building

 This section notes the ease with which information may be weaponised by foreign actors, but also domestic actors. The first aspect of any response is to better understand the threat landscape and the Communication calls for closer cooperation internally as well as with relevant stakeholders in civil society, academia and private industry, and with international partners. Here the EDAP refers back to the EU Security Union Strategy (COM(2020)605 final) from July 2020. Within this, the Commission plans to develop a common framework and methodology for collecting systematic evidence on foreign interference. The existing Rapid Alert System, one of the four pillars of the  Action Plan against Disinformation from 2018 and run by the EEAS, will continue to function but the Communication envisages the possibility of extending the bodies it cooperates with (already including NATO and G7) to the EU Agency for Cybersecurity (ENISA), the European Digital Media Observatory (EDMO – established 2020) and even Europol.

One new proposal is that of seeking to impose costs on perpetrators.  In the response to its consultation on the Communication, the Commission noted that civil society organisations stressed the need to make the threat of targeted sanctions more credible and frequent, to raise the cost of foreign influence operations and thereby deter interference. The mechanisms to do this need further development and also need to synergise with the ‘cyber diplomacy toolbox’ from 2017.  The Communication also recognises the need to tackle threats through tackling them in third countries, suggesting that democratic governments should be equipped with the means to respond to such threats, especially in the European Neighbourhood and Enlargement region. 

Platform Accountability

Increasingly policy-makers are recognising that the platforms are not neutral as to the content they encourage and promote; the recent assessment of the Code of Practice on Disinformation re-iterated this point (see also views of ERGA).  The Commission now proposes a co-regulatory oversight mechanism, forming part of the DSA; this linkage significantly reinforces the importance ascribed to this issue.  The DSA is described as requiring a risk managed approach to their systems (and if this is so, it seems to be following a similar approach to that proposed by Carnegie UK Trust [disclaimer: I co-authored the report] which seems to have influenced the UK Government’s Online Harms White Paper which talks about ‘safety by design’).  In the meantime, the Commission will issue guidance on tackling misinformation with the aim of strengthening the code; the Commission also envisages more robust and on-going monitoring of the code. The Commission also emphasised the importance of the EDPB guidance on the application of the GDPR in this context. 

Empowering Citizens

This is essentially about strengthening media literacy through a number of mechanisms, including civil society and higher education establishments and it ties with a number of media initiatives.  Intuitively, this sounds right but may be more difficult to achieve in practice and media literacy initiatives’ success may depend to some extent on changing to the business systems that at the moment seem to promote misinformation and disinformation and trigger ‘frictionless communication’. 

Conclusion

The plan is broad and it will be interesting to see the speed at which these new initiatives are rolled out and more detail added to them (e.g. imposing costs on perpetrators). Much of the work is not of a legislative nature but rather about ensuring co-operation and making effective initiatives that already exist.  While desirable in its own right, this fact also reminds us that we are in terrain where the EU’s competence is limited, certainly as far as legislative capacity goes.  It is also noteworthy that much of EDAP refers to other strategies and action plans. A cynic might say then what, in concrete terms is new; but another perspective notes that the issue of disinformation and misinformation is complex and touches on many areas. In this light, the EDAP is a mechanism pulling these disparate strands and actors together. It remains to be seen this impact that increased cooperation will have on the problems in this area.

 

Photo credit: via Wikimedia commons, by Skeptical Science

Of extension of UK membership and basic democratic principles: why the UK will need to hold EP elections if its membership of the EU is prolonged beyond the 22nd of May

Professor Eleanor Spaventa, Bocconi University

To say that the political situation is the UK regarding Brexit negotiations is volatile is an underestimation of reality; Mrs May’s tactic of running down the clock might or might not be successful, but it also appears to have backfired, since now there is an unavoidable need to seek an extension to Article 50 TEU. Should the Withdrawal Agreement finally be accepted by the British Parliament this week, the UK will need an extension to the exit day in order to pass all the legislative instruments needed before withdrawal from the EU.

Should the Withdrawal Agreement be rejected, then the UK will need an extension to either prepare for a non-agreed exit, or to decide where its future lies. But once again the political turmoil, and the options available, are constrained by the constitutional framework of the EU. In particular, the issue is whether the UK would have to hold European Parliament elections if its membership of the EU is to continue beyond the 23rd of May. The problem of course is that holding EP elections is symbolically and politically problematic for the Government, and yet, even opting for a shorter extension, the UK might need more time to pass all the required legislation.

The European Commission’s view seems to be that the UK will not be able to seek an extension beyond 23rd May unless it holds EP elections. The Commission’s position is based on a very simple and yet, in the writer’s opinion unchallengeable premise: EU citizens have a Treaty right to vote for the European Parliament and, as long as the UK is a member of the EU, that right is bestowed on its citizens and on EU citizens living in the UK.

Yet, illustrious EU lawyers have argued in this blog and elsewhere that an extension could stretch to the end of June, without compromising the legitimacy of the newly elected European Parliament. The same point was made in a legal opinion to the European Parliament. Yet, to focus simply on the legitimacy of the European Parliament misses the point: democracy is not a mere exercise in institutional balance – if it were so there would be nothing preventing any Member State or the EU to prolong the term of their Parliaments beyond the fixed mandatory term. After all, if one Member State were to be allowed not to hold European Parliament elections because of its own political problems, why not another Member State for its own political problems. So at first sight, the idea that the UK could be a member of the EU and withhold the right of its citizens, and of EU citizens resident in its territory, to vote for the European Parliament elections seems to be an anathema for a polity which is based on the rule of law. And the legal impossibility of such a scenario is backed not only by the Treaties, and the Charter, but also by the obligations bestowed on the UK and all of the other Member States by the European Convention on Human Rights.

The law on EP elections as it stands

Article 14(3) of the TEU provides that members of the European Parliament shall be elected for a term of five years by direct universal suffrage, whereas Article 20 (2)(b) TFEU provides that every citizen of the EU shall have a right to vote and stand for elections in the State where they reside under the same conditions as nationals. The Court of Justice, in its ruling in Delvigne (discussed here), clarified that the franchise for European Parliament elections is a matter falling within the scope of EU law, even in relation to own citizens. For this reason, the Charter of Fundamental Rights applies; the Court found that the deprivation of the right to vote of a own citizen is a limitation of the right conferred in Article 39(2) Charter; as such it must be justified under the conditions provided for in Article 52 Charter. The limitation to the right to vote must therefore be provided by law (which in the case of the UK would require a new Act since at present the UK simply has not made any provision for the EP elections), must be justified in relation to a public interest recognized by the Union, be necessary for the attainment of that interest and be proportionate. The disenfranchisement of an entire nation would fail to meet these requirements: it would be difficult to identify a public interest pursued by such disenfranchisement (unless one believes that protecting the Conservative Party from self-implosion can be qualified as a public interest), nor would disenfranchisement be proportionate or necessary to ensure withdrawal.

Furthermore, rights conferred by the Charter cannot fall below those provided for in the ECHR: the European Court of Human Rights has clarified in Matthews that Article 3 of Protocol 1 of the ECHR, the right to free elections, applies in relation to the European Parliament. Member States are then obliged, under the Convention, to guarantee the franchise for it, as well as respect basic democratic principles. For this reason, the UK was in violation of its ECHR obligations for disenfranchising citizens in Gibraltar who did not (at the time) have a right to vote for the European Parliament.

If the UK seeks an extension it will remain a Member State of the EU, and as such bound by the Treaties and the Charter. The UK is also bound by the ECHR in this matter, both as a Member of the EU and as a Member of the Council of Europe. It therefore seems that it would not be able, under both EU and ECHR law, to disenfranchise its own citizens.

Barnard and Weatherill, as well as AG Sharpston, suggest that the democratic issue could be overcome by prolonging the mandate of the current British MEPs – yet, such a suggestion is not only contrary to the Treaty but also inimical to the very basics of democratic principles (it is dictators that usually resort to these systems). Their suggestion that, since those MEPs have been democratically elected in 2014, they can continue to represent British citizens past the life of this European Parliament, without seeking a new mandate is far from being persuasive, not only because there is no such possibility in the Treaties, but also given that the passive electorate has changed in the past five years and that prolonging MEPs would entail the disefranchisement of those who have come to voting age in the past 5 years. And even if it were legally possible under EU law to provide such a transitory arrangement, through a derogation from the Treaty provisions as suggested by AG Sharpston, such a transitional arrangement would still breach Article 3 of Protocol 1 of the ECHR.

In as much as we might want to avoid Brexit chaos, the end cannot justify the means in this case; disenfranchisement is illegal and infringes the founding principles upon which the EU is founded (democracy, rule of law and protection of fundamental rights). Furthermore, following the ruling in Wightman (discussed here), the UK can at any point withdraw its notice under Article 50. As clearly stated by the Court, up until that point in which the Withdrawal agreement enters into force or the UK has exited by virtue of the passing of time, the UK is and remains a full member of the EU (also during the extension) – and its citizens therefore are subject to all its rules and derive all the rights stemming from the Treaties.

To allow the UK to remain a member of the EU without participating to the European Parliament elections would not only be illegal, it would be very dangerous (not least in these political times): Brexit is bad enough as it is – it cannot be allowed to destroy the very values upon which the EU is founded and which it already struggles to protect.

Barnard & Peers: chapter 3, chapter 27

Photo credit: Evening Standard

Extension and elections: We need to talk about Article 50

Professors Catherine Barnard and Steve Weatherill, Universities of Cambridge and Oxford respectively

Its 261-word text is now infamous. It is brief, at times laconic, and leaves many things unsaid or uncertain. So, what does - and doesn’t - Article 50 permit?

Let’s start with the easy stuff.  Article 50(3) says that the two-year period can be extended by the European Council acting by unanimity (all 27 EU heads of state or government do not have to agree, it means only that none must disagree; abstentions do not block unanimity). Subject to the intended purpose and length, it is thought that the EU would say yes to an extension. Importantly, the UK would still be a Member State during this extended period.

An extension might give the UK more time to convert the Withdrawal Agreement into a statute, the Withdrawal Agreement Bill (WAB). This assumes, of course, that the Commons has approved Theresa May’s ‘deal’, comprising the Withdrawal Agreement and the Political Declaration on the future relationship. So far it has been rejected twice (MV1 and 2); it may still get through on its third or fourth iteration.

If Parliament rejected Mrs May’s deal, an extension would provide time to prepare the primary legislation and the remaining 600 or so Statutory Instruments needed on the statute book for a no-deal Brexit. It might too offer space for a General Election and/or referendum, although the political obstacles are high. The EU may be more likely to offer an extension in the latter scenario.

There are several alternative scenarios for how long an extension may last:

- To the end of May, just before the European Parliament elections, to allow enough time to get the WAB through

- To the end of June, just before the new European Parliament sits, again to get the key legislation through (this is the basis of the government’s motion of 14 March 2019), or to the start of September when the European Parliament starts to make some key decisions

- To the end of the year, to ensure that the legislation is passed in the UK

- To the end of 2020, which is the end of the EU’s current budgetary period (and which also coincides with the planned end date of the transition period under the Withdrawal Agreement)

- To the end of 2022, by when the shape of a trade deal for the future might have become clear, so the UK could move from existing membership to the new arrangements, possibly via a further period of transition. This would avoid the need for the Northern Ireland backstop since the UK would remain a Member State, although its fate after 2022 would depend on the terms of the deal struck (if any). The UK would remain a full member of the EU institutions and so avoid the ‘vassal state’ status envisaged by the arrangements for transition if the Withdrawal Agreement comes into force.

If a short extension is chosen, say three months, can Article 50(3) be used to extend the Article 50 period again, and again? We believe the answer is yes, for the simple reason that Article 50 does not prohibit it. Nor did the Court of Justice, in its Wightman decision, hint at any objection to serial extensions.

The UK would need to ask the European Council for an extension, and the member states would need to act unanimously to agree it (again abstentions do not block unanimity: Art 235 TFEU). Most likely, in order to provide a sense of political authority, this could be agreed at the next European Council summit on 21 March. Can the European Council lay down conditions on the extension? Article 50 is silent on the point. Our view is that Article 50 should be read flexibly to allow for the possibility to include particular ad hoc adjustments needed to ensure that extension is feasible. This would leave space for the political process, which seems likely to require some commitments by the UK about what it wants to achieve during the period of extension.

In domestic law, Section 20(1) of the EU(Withdrawal) Act 2018 provides that exit day is 29 March 2019. Section 20(4) allows that date to be changed by regulations. As the government’s explanatory notes acknowledge: “A change in the date is possible under Article 50(3) of the TEU. Regulations made under subsection (4) would be subject to the affirmative procedure.” Using this procedure will not be straightforward for Westminster politicians. However, if/when MPs support a motion to extend the Article 50 period, it would be difficult for Parliament then not to provide the means, most obviously by approving an order changing the designated exit day.

Elections for the European Parliament will take place at the end of May. A European Council Decision (2018/937) recognises the possibility that the UK will still be a Member State and makes provision for British MEPs accordingly. So what would happen if the UK is still a Member State because Article 50 has been extended? UK nationals, and EU nationals living here who have a Treaty-based right to vote in EP elections, should surely still be represented, not least because the EU is based on the rule of law, which includes respect for democracy. (See also the summary of the European Parliament’s legal service opinion, in the Annex).

The terms of an extension could include a commitment by the UK to hold elections in May. While this looks possible on paper, the politics at Westminster are potentially toxic. UK legislation would be needed for elections to be held: Section 4 of the European Parliamentary Elections Act 2002 - due to be repealed by Schedule 9 of the EU(Withdrawal) Act 2018, but that part of Schedule 9 is not yet in force - would require an Order, approved by both Houses to appoint the day for those elections. There may need to be other orders, such as designation of returning officers etc. The UK will have to act quickly – by some time in April – since other Member States which have received the UK seat allocations will need to adapt their processes.

Deferring the elections until the way ahead is clearer would suit the UK, but the EU needs a properly constituted European Parliament in place to operate on a secure constitutional basis. Outright refusal by the UK to hold elections would not mean that the Parliament’s actions were robbed of validity, for that would be to grant a state acting in breach of the Treaties a power to paralyse the workings of the EU.

Could the EU itself agree to extend the UK’s status as a Member State without the need to hold EP elections here in May? The Treaties direct that the Parliament’s members ‘shall be elected for a term of five years by direct universal suffrage in a free and secret ballot’ (Art 14(3) TEU; also Art 223 TFEU).  Could the European Council could agree to British MEPs continuing to sit without the need for election in May?  In our view, this would not contradict Article 14(3) TEU: those MEPs have, after all, been elected for a term of five years by direct universal suffrage in a free and secret ballot – just not in May 2019, but rather in 2014.

This, we suggest, could be agreed within the context of the negotiations. Article 50 has, after all, already been read flexibly and creatively to deal with matters not strictly solely concerned with the issues connected with withdrawal – witness the Irish backstop, which is clearly directed at the future post-withdrawal.

In similarly creative vein, an extension of the mandate of the existing British MEPs could be agreed in the context of negotiating the extension which is explicitly foreseen by Article 50(3). This would avoid the need for elections even where the UK, as a result of an agreed extension to Article 50, remains a member of the EU after June 2019. This idea would certainly increase the available political options. At present, the EU does not accept this premise but others are beginning to suggest something along similar lines – including the British Advocate General Eleanor Sharpston.

It remains possible for the UK to unilaterally withdraw (or revoke) the notification made pursuant to Article 50. An Act of Parliament would repeal the EU (Notification of Withdrawal) Act 2017, and the EU must be duly notified. The Wightman decision of the ECJ makes clear that the UK can do this independently and unilaterally, without the agreement of the EU, provided the notification is unequivocal and unconditional. Mrs May has consistently said she will not do it. But the law allows it, and it is still available as a parliamentary option.

Barnard & Peers: chapter 27

Photo credit: WWF EU

Annex

Summary of European Parliament legal service opinion on Brexit and EP elections

(on file with blog editor Steve Peers)

In September 2017 (before the European Council adopted its decision on allocation of EP seats) the EP legal service gave its opinion on two questions: (a) could the European Council adopt a decision on allocation of EP seats not including the UK, if the UK was still a Member State when the decision was adopted? and (b) if the UK has not left before the EP elections, can the EP meet without the UK seats?

On point (a), the legal service said that the European Council could allocate seats to 27 Member States only, given that the UK was due to leave on 29 March 2019. However, it could also take account of the scenario if the UK was still a Member State, due to extension of membership, for instance. In practice, this is what the European Council did, on a proposal from the European Parliament (which also needed to consent to the decision).

On point (b), the legal service says that as long as the UK is a member of the EU when the elections to the European Parliament are held, the UK must hold EP elections. However, in the event that the UK failed to meet its obligations, the EP could still meet validly.

Is Data Protection Coming Home? The CJEU on data protection law and Jehovah’s Witnesses – and political canvassing?

Professor Steve Peers, University of Essex

You’re in the shower, and the doorbell rings. It might be the Amazon delivery you were expecting, with your daughter’s present – and it’s her birthday tomorrow. You leap out of the shower and dash wetly down the stairs to open the door in time. But it’s only a couple of Jehovah’s Witnesses.

After responding to their entreaties in much the same way that Boris Johnson responds to business, you close the door, and think no more about them. Yet they are still thinking about you. In order to focus more effectively on who to bother about God again, they keep a record of each household they visit, with categories of (say) “Believer”, “Unbeliever”, or (if you couldn’t find a towel) “Satanist”.

It’s not just religious enthusiasts who might knock on your door and gather personal data, of course. There are also businesses, charities and political canvassers. For the Brexit Referendum, I joined the local Labour party to knock on doors in the leafy London Borough of Remainey. If I recall correctly, we kept records of voters in the categories of “Remain”, “Leave”, “didn’t say” and “absent”. (It seems the Labour party has stopped using the category of “Bigoted Woman”).

These activities are of interest not just to preachers or spin doctors, but also data protection authorities. But does data protection law apply at all to such door-knocking? The CJEU answered that question yesterday, in a new judgment answering questions raised in a dispute between the Finnish data protection board and Jehovah’s Witnesses.

Facts

The Finnish data protection board had ordered the Jehovah’s Witnesses to stop processing personal data unless they complied with Finland’s version of the EU’s data protection Directive (since replaced by the infamous GDPR). The board asserted that both the religious community and its members were “data controllers” with liability for the correct application of data protection law. A lower court agreed with the legal challenge brought by the Jehovah’s Witnesses, but on appeal a court asked the CJEU to interpret the relevant provisions of EU law.

In practise, the Jehovah’s Witnesses take records (names, addresses, religion, family status) of their meetings with householders. There’s also a list (perhaps a rather longer one) of those who would like the Jehovah’s Witnesses never to darken their door again. The dispute concerned the main list: did it fall within the scope of EU law at all, or was it rather outside the scope of that law because of the “household exception” or the non-exhaustive security exception to it, or because the notes were too disorganised to form part of a “filing system”. Furthermore, if the Directive did apply, were both the community and its individual members data controllers?

Judgment

The CJEU began by asserting that the exception for state security and similar areas did not apply to Jehovah’s Witnesses, as that exception could only apply to acts of the State. Secondly, the household exception did not apply either, because following prior case law on home security cameras (discussed here), that exception did not apply to activity directed outward from the household. While proselytisation was covered by the EU Charter of Rights as an aspect of freedom of religion, that did not mean that door-knocking fell within the household exception.

Next, was the note-taking part of a “filing system”? The Court ruled that the Directive “broadly defined” this notion: the requirement that the data be “structured according to specific criteria” is “simply intended to enable personal data to be easily retrieved” (para 57). No data sheets, specific lists, or other method of processing personal data was necessary to show the existence of a “filing system”. In this case, it was sufficient that the data was structured according to the Jehovah’s Witnesses’ criteria for a “filing system” to be present.

Finally, are there multiple data controllers here? Following its recent judgment on Facebook fan pages (discussed here), the CJEU reiterated a “broad definition” of that concept, although that did not mean that every data controller had equal responsibility, or had to have access to the data to be a controller. In this case, the coordination of its members’ activity by the Jehovah’s Witnesses community made them both responsible for the data processing. This conclusion wasn’t affected by the Treaty provision on the autonomy of religious bodies, following the recent judgment on discrimination law and religious bodies (discussed here).  In effect, such autonomy does not grant them a general exemption from EU law. Compliance with that law is, in effect, one more cross for them to bear.

Comments

It makes sense that the household exception does not apply to Jehovah’s Witnesses, given that in practice many homeowners either do not open their doors to the eager evangelists, or slam the doors in their faces if they do. It’s also striking that the Court takes a broad definition of “filing systems”. That’s consistent with its broad interpretation of the scope of EU data protection law in many cases, and its interpretation of “data controller” reiterated here; but UK data protection lawers will be aware that it contrasts with the narrower definition of “filing systems” in UK case law. The Court’s emphasis on joint responsibility of data controllers echoes its recent judgment on Facebook and friends, as noted above.

That leads us to the broader implications of the judgment: its potential impact on politics. There’s no reason to doubt that the judgment applies equally to political canvassing, as the collection of data and relationship with householders is similar, and the Charter protection for freedom of expression would by analogy not protect parties from the application of data protection law either. The insistence on joint responsibility of data controllers poses a possible complication for door-knockers of either type: they must be aware not only of the inspiring words of Jesus Christ or Jeremy Corbyn, but also the infinitely drier text of the GDPR, a prospect which surely enthuses not the many, but the (very, very) few.

But while we know that EU data protection law applies to such activities, and that responsibility is shared, we don’t know how to apply the law in such cases, as the Court wasn’t asked. (The earlier ruling on home security cameras similarly leaves such possible questions unanswered). On what grounds can the data be processed? Must homeowners give their consent to the processing for specific reasons? One can imagine that those who are already reluctant to discuss their faith with Jehovah’s Witnesses will be even more reluctant to discuss the minutiae of data protection consent with them too. Can the legitimate interest of evangelists or political canvassers justify the processing of data? Or can a statute validly regulate this issue? (One suspects that politicians will be particularly keen to find time to legislate to justify their own activities, if necessary).

The judgment – combined with the recent Facebook fan page judgment – might also have implications not only at the low-tech end of political canvassing, but at the high-tech end too. Today sees the publication of the UK Information Commissioner’s report into allegations of breaches of data protection law during the Brexit referendum, including also allegations about Facebook’s work with Cambridge Analytica. The ICO also published suggestions on data protection law and the democratic process. (See also the recent publications from the Electoral Commission and an Independent Commission on Referendums). Traditionally it’s been easier to address concern about the fairness of political processes because people wear red or blue rosettes when knocking on the door, or parties identity themselves in political literature or broadcasting. It’s far harder where online political messaging is questionably funded, poorly regulated (particularly as regarding funding limits and foreign funding) and frequently dishonest.  Recent judgments and regulatory efforts are baby steps towards addressing these essential concerns.

Photo credit: JW.org