The European Citizens Initiative on a European Free Movement Mechanism: A New Hope or a False Start for UK nationals after Brexit?

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By Oliver Garner

I. Introduction: A New Initiative for UK nationals After Brexit?

On 11 January 2016, the European Commission registered a European Citizens Initiative to create a “European Free Movement Instrument”. The purpose of the Initiative is to lobby the European Union institutions to create a mechanism by which individuals may be directly granted the rights of free movement provided by EU citizenship, which is currently predicated upon nationality of a Member State in accordance with Article 20 TFEU. The proposers of the Initiative – the “Choose Freedom Campaign” – outline that their intention is not to reform the nature of Citizenship of the European Union; they concede that “the EU isn’t a government, and only Nation states can issue Citizenship”. Instead, their ambition is more limited – they argue that the European Union should institute a “Universal Mechanism” in order to provide individuals with a European Union passport: “we beg the Commission to delineate a method by which all Europeans of good standing may be granted a signal & permanent instrument of their status and of their right to free movement through the Union by way of a unified document of laissez-passer as permitted by Article (4) of Council Regulation 1417/2013, or by another method”.

Although the information on the Initiative on the Commission’s website and the accompanying press release do not explicitly link the putative Free Movement Mechanism to Brexit, it seems clear that such a competence for the European Union to directly issue EU passports would address the loss of rights that will be attendant to UK nationals losing the status of EU citizenship provided to them through nationality of a Member State once the United Kingdom has withdrawn in accordance with Article 50 TEU.

Indeed, in media coverage of the Initiative, the substitute representative of the proposal is quoted as stating that “[whatever the result of the campaign, I hope – at the very least – that it will prove to all European governments how strongly we (UK nationals) value our EU citizenship, and the lengths to which we are prepared to go to hold onto those rights and freedoms.”

Consequently, this post will consider the feasibility of the proposed European Free Movement Mechanism to address UK nationals’ loss of EU citizenship status and rights after their Member State’s withdrawal. After introducing and analysing the mechanism of the European Citizens Initiative, it will consider whether the legal basis of Council Regulation 1417/2013 constitutes a “false start” as a method by which the European Union may unilaterally grant citizenship rights to UK nationals and other “Europeans of good standing” who do not have the status of EU citizen. Despite the doctrinal difficulties of this approach, it will consider whether the spirit of the Initiative in combination with institutional proposals from the European Parliament may provide “a new hope” for those individuals who will lose their Union citizenship. Finally, it will conclude that allowing UK nationals to retain the substance of the status of EU citizenship provides an opportunity for the European Union to put its values into practice in contradistinction to an instrumental approach towards those citizens whose rights and status will depend on the interests of negotiators in the two years after Article 50 TEU is triggered.

II. A False Start? The efficacy of European Citizens Initiatives

Before considering the merits of the legal basis proposed in this particular Initiative, a brief overview of the efficacy of this mechanism of policy-input should be provided. The European Citizens Initiative was created by the Treaty of Lisbon. Its Treaty bases can be found in Article 11(4) TEU and Article 24 TFEU. Regulation No 211/2011 on the Citizens’ Initiative was promulgated on 16 February 2011 detailing the requirements for the proposal and success of an Initiative. To launch an Initiative, a “citizens’ committee” must be composed with at least 7 EU citizens resident in at least 7 different Member States. In order for the Initiative to be successful, it must receive at least one million signatures from a minimum of 7 different Member States which have their own minimum limit of signatories.

The Commission’s website describes the European Citizens Initiative as “an invitation to the European Commission to propose legislation on matters where the EU has competence to legislate”. In practice, this “invitation” has had little success, and may be considered as more of a symbolic gesture towards direct democracy than an effective and realistic tool of policy making. Since the first Initiative on Europe Day 2012 only three Initiatives have fulfilled the threshold requirements detailed above. Even fulfilling these arguably onerous requirements provides no guarantee that such a proposal will trigger a legislative procedure; instead the Commission exercises its discretion to provide a follow-up to the Initiative.

Furthermore, the lack of political will from the Commission to engage with such Initiative is arguably shown by the fact that the proposers of a separate European Citizens Initiative have felt compelled to initiate litigation against the Commission for its failure to provide reasons for not registering an initiative in the Minority SafePack case before the General Court. The claimants argued that the Commission had failed in its duty to provide reasons generally under Article 296(2) TFEU and specifically under Article 4(3) of the Regulation for why they had refused registration of a proposal for various different legal acts in different areas relating to protection of minorities. The General Court clarified at paragraph 17 that “the refusal to register the proposed ECI is an action that may impinge upon the very effectiveness of the right of citizens to submit a citizens’ initiative…Consequently, such a decision must disclose clearly the grounds justifying the refusal”.

The Court went on to find that the Commission did not fulfil this obligation in outlining why any of the 11 proposals in the Initiative “manifestly fall outside of the scope of the Commission’s powers to submit a proposal for a legal act of the Union” as outlined by Article 4(2)(b) of Regulation 211/2011. The Court argues at paragraph 29 that such an administrative failure can undermine the purpose of the mechanism of the European Citizens Initiative “of encouraging participation by citizens in democratic life and of making the European Union more accessible.” As Anastasia Karatzia concludes in her case-note: “The ECI is still a young instrument, so every clarification of its legal background is helpful for its development.” Regardless, the actuating fact of this legal clarification – the Commission’s failure to provide reasons – can be interpreted as evidence of the lack of political will to engage with such Citizen Initiatives.

Fortunately for the Choose Freedom campaign, their Initiative for the European Free Movement Mechanism has successfully negotiated this first procedural hurdle of registration which the Minority SafePack Initiative failed. The Commission outlines in their press release that “The College of Commissioners discussed the legal admissibility of the proposed ECI and agreed that it meets all the conditions necessary for registration under the ECI Regulation” thus confirming that the proposed Universal Mechanism would not fall manifestly outside of the Commission’s power to propose new legal acts.

The Initiative now has until 11th January 2018 to gather the necessary number of signatures in order for it to pass to the next procedural stage of consideration by the Commission. In accordance with Article 10 of Regulation 211/2011, this consists of receiving the organisers at an appropriate level to allow them to explain in detail the matters raised by the Initiative (Article 10(1)(b)), and consequently within three months setting out in a communication its legal and political conclusions on the citizens’ initiative, the action it intends to take, if any, and its reasons for taking or not taking that action (Article 10(1)(c)).  Therefore, even if the European Free Movement Mechanism Initiative does make its way before the Commission, this still triggers little more than a discretion for the Commission to decide whether or not to proceed to the initiation of legislation. For this reason, it could be argued that the Initiative has had a “false start” purely through the inefficacy of the method of policy-making by which it has been initiated. However, assuming that the Commission is so moved as to take action on the European Free Movement Mechanism, it is necessary to analyse the substance of the Initiative’s proposal in order to determine the prospects for it to be enshrined in Union legislation if it is successful.

III. The prospects of Council Regulation 1417/2013 to provide a “Universal Mechanism” for free movement

In his characteristically colourful manner, Steve Peers has doubted the prospects of Council Regulation 1417/2013 to provide a suitable legal basis for such a mechanism. In a series of tweets, Peers reiterates that the Regulation is limited to the provision of travel documents to “members of the institutions of the Union” and “special applicants” ((Article 1(1))). The text of the Citizens Initiative relies on this latter category, and focuses on the substantive condition of “exceptional basis and due motivation” However, as Peers highlights, the Initiative seems to miss the extremely limited scope of this category. “Special applicants” are defined pursuant to Annex II of the Regulation; Article 1(1) of the Annex explicitly outlined that this category is limited to “family members of a member of an institution” and other narrowly defined categories of family members of officials who fall outside of the statutory conditions, and Seconded National Experts and Junior Professionals in Delegation and their families. However, these categories are conditional upon “long stay outside the Union, including long-term posting”.

Therefore, the limited scope of Regulation 1417/2013 suggests that it is a non-starter as a legal basis for providing a Universal mechanism to all individuals who will lose their citizenship rights following the withdrawal of the United Kingdom from the European Union. To provide for the rights of all “Europeans of good standing” (an under-defined category in itself), the material scope of application of the Regulation would have to be extensively widened through legislative amendment. For this reason, Peers concludes with the “constructive suggestion” that the proposers should “[s]trangle this ECI, start again. Ask for Article 50 deal to include guarantees for EU and UK citizens.” Although Peers’ assessment of the unviability of Regulation 1417/2003 is undoubtedly persuasive, it could be argued that he has been rather too hasty in dismissing the value of the European Free Movement Mechanism initiative. To be fair to the proposal, it does envisage the use of “another method” to achieve its stated aim.  As amendment of the proposed Regulation would be necessary, it would seem just as efficacious to propose the creation of new legislation to addresses this issue: this author has argued elsewhere that the promulgation of an “ex-Citizens Directive” that mirrors the content and conditions of the current Citizens’ Directive 2004/38 may be a desirable method to achieve this aim.

In addition to providing a viable legal basis for the proposal of such a “universal” mechanism, I would also argue that the creation of a new legislation is also desirable from the perspective of clarity. In its current guise, the Citizens Initiative is rather opaque and clandestine in its reference to “Europeans of good standing” and its omission of the crucial Brexit context which has triggered the proposal. Additionally, its legal hook of the exceptional granting of rights to Union officials and their family members perpetuates the critique of European integration operating only for the benefit of a detached transnational elite; a similar concern can be expressed with regard to UK officials in the EU institutions lobbying for fast-tracked Belgian citizenship in order to retain EU citizenship privileges post Brexit.  If the Union is to take such a momentous political decision, it should be taken on clear and unequivocal grounds, and it should also be an offer that is open to all individuals who wish to retain or acquire the status of European citizenship rather than those of under-determined “good standing”.

Regardless of the Initiative’s deficiencies, in the following section, and in departure from Peers analysis, I will consider whether the Initiative may have a purpose to play in tandem with other institutional proposals that have arisen to preserve the substance of EU citizenship for UK nationals after Brexit.

IV. A New Hope? The Initiative and “Associate Citizenship”

Peers’ suggestion quoted above argues that, in contrast to the use of current Union legislation to guarantee the EU citizenship rights of UK nationals, a bilateral solution should be sought during the process of negotiating the United Kingdom’s withdrawal treaty under Article 50(2) TEU. Although perhaps more practically achievable than the mechanism of the European Citizens Initiative, placing reliance on a bilateral solution leaves the fate of affected EU and UK citizens to the vagaries of the negotiating table. The current fraught climate of the relationship between the United Kingdom and the European Union – even before negotiations have officially begun – suggests that this is hardly a comforting solution for affected citizens. Infamously, the UK Secretary of State for International Trade has referred to EU nationals in the United Kingdom as one of the withdrawing Member State’s “main cards” in negotiations. The House of Commons then failed to assuage the doubts of affected EU nationals resident in the United Kingdom that they would be used as negotiating chips by voting down an amendment to the European Union (Notification of Withdrawal) Bill 2017 that would have unilaterally guaranteed rights of residence before negotiations commence. The Bill is currently passing through the House of Lords, which may be the last opportunity for the United Kingdom to provide unilateral guarantees to EU citizens regarding their rights before the negotiation procedure beings.

Moving back to the concordant status of UK nationals in the European Union’s territory, there has been an institutional proposal by Members of the European Parliament that could provide unilateral assurance of citizenship rights rather than leaving this to bilateral solutions. The proposal to create a status of “associate citizenship” of the European Union was initially proposed by the MEP Charles Goerens in Amendment 882 to a report of the European Parliament Committee of Constitutional Affairs. This status would enable those “who feel and wish to be part of the European project but are nationals of a former Member State…the rights of freedom of movement and to reside on its territory as well as being represented in the Parliament through a vote in the European elections”.

In an email sent to citizens who had contacted him regarding the proposal on December 9th 2016, Goerens outlined that he had agreed with the Rapporteur, Guy Verfhofstadt, to withdraw the amendment. Verfhofstadt is also the European Parliament’s chief Brexit negotiator, and thus the decision was made to incorporate the substance of the proposal as part of the European Parliament’s negotiating position which is set to be finalised in Spring 2017. It would seem that the contours of Verfhofstadt’s plans are to include the creation of such a status as part of the European Parliament’s demands in the negotiation of the United Kingdom’s withdrawal treaty. Although still an improbable result of the negotiations, the fact that the European Parliament must ratify the withdrawal treaty in accordance with Article 218 TFEU suggests that the prospects of success for such a proposal are higher than the prospects of the Citizens Initiative on a European Free Movement Mechanism.

Crucially, however, such proposals do not need to operate in isolation. If the European Free Movement Mechanism Initiative is successful in garnering the necessary one million signatures from seven different Member States, then this will provide great supplementary popular pressure in order to legitimate Guy Verhofstadt’s incipient negotiating demands – assuming, of course, that the European Parliament accepts such a radical unilateral guarantee of rights for UK nationals without reciprocal guarantees for affected EU citizens in the United Kingdom. The hearing that will be provided to the organisers under Article 10 of Regulation 211/2011 could provide vital dissemination of information and momentum regarding such proposals. The Commission’s subsequent consideration and follow-up to the Initiative, coupled with the obligation to publicise under Article 10, could then provide an important occasion for the institution that functions as the “guardian of the Treaties” to consider in-depth the possibility of the decoupling of Union citizenship from Member State nationality in the face of such seismic upheaval for those citizens who will be affected negatively by Brexit.

V. Conclusion: An opportunity for the European Union to put its values into action

The European Citizens Initiative for a European Free Movement Mechanism may prove to be a “false start” for the retention of citizenship rights for UK nationals after Brexit due to the procedural constraints of the Initiative mechanism, in addition to the doctrinal deficiency of using Regulation 1417/2013. However, if the Initiative does generate popular support, then in combination with institutional proposals such as the creation of  “associate citizenship” then it may form part of a holistic package  of Union action which may provide “a new hope” for UK nationals who wish to continue to rely on their soon to be rescinded status as EU citizens.

Consideration of such proposals also provides a crucial opportunity for the European Union’s institutions to display its values and to put them into action in the upcoming withdrawal negotiations with the United Kingdom. Article 2 TEU states that, inter alia, the European Union is founded upon “human dignity”, and the following Article of the Foundational Treaty states that the Union shall “offer its citizens an area of freedom, security and justice without internal frontiers, in which the free movement of persons is ensured”. If the Union were to vindicate the dignity of those EU citizens who will lose their citizenship by continuing to provide them with the offer to participate in European integration, then it would prove that these statements are not merely rhetoric and instead are guides for political action. Thus, it could vindicate its own values claims by treating individuals as autonomous subjects, rather than objects who may be treated instrumentally as bargaining chips in a negotiation – a position which has unfortunately already been displayed by the UK political leaders who will soon sit on the other side of the negotiating table.

This blog post was originally posted on the European Law Blog