Thread by @StevePeers

New ruling of the EU General Court yesterday on whether UK citizens retain EU citizenship. It's not published yet but Julien kindly sent it to me, so I will summarise in this thread.

https://twitter.com/julienfouchet1/status/1402700431747395590

This is one of three cases directly challenging the validity of the withdrawal agreement (or rather, the Council decision concluding it) in the EU General Court. There are also two cases on the same issue sent to the CJEU from French courts.

The EU General Court said that this case was inadmissible because the applicant lacks standing to sue directly. Therefore it did not rule on the merits of the case.

This standing problem will likely apply to the other two General Court cases. But it does not apply to the cases sent by French courts to the CJEU. So in principle the CJEU should answer the questions in those latter cases.

It's also possible to appeal yesterday's ruling, and the other General Court rulings, to the CJEU. And Julien has brought a further case before the European Court of Human Rights.

But for now we have the new ruling. Why did the applicant lack standing? Here's the legal rule on standing in Article 263 TFEU. There are three routes to standing. First of all, the Council decision concluding the withdrawal agreement wasn't addressed to Mr Price.

Second possibility: direct and individual concern. The Court said that he lacked individual concern, so no need to examine direct concern. It applied the strict case law which makes it very difficult to prove individual concern. Being a Brit affected by Brexit isn't enough.

Third possibility: a regulatory act if there's direct concern and no implementing measures. The Court only looked at the first part of this test. It said a decision concluding an international treaty isn't a regulatory act; it's equivalent to legislation instead.

That last point is new and could reasonably be challenged on appeal, in my view. BUT even if successful on this point the applicant would still be left with the difficulties of showing direct concern and no implementing measures.

More likely that the resolution of this issue will come from the cases referred by the French courts, where there might be hearings and rulings later this year/early next year.

NB: a) this is separate from arguments about whether the UK has breached the withdrawal agreement
b) the standing issue is not about being a non-EU citizen

I've updated my collection of Brexit litigation to include the recent rulings on UK citizens and EU citizenship, and on non-EU carers of British children applying for settled status: eulawanalysis.blogspot.com/p/litigating-b…