Even though one may not be interested in politics at all, it is sure that on January 31, 2020 everybody was aware of the fact that the United Kingdom left the European Union. The newspaper titles all around the world were announcing the same news: after 47 years of membership, the UK officially withdrew from the EU (The New York Times, 2020). What is going to happen now? How is it going to affect our lives? In my opinion, one issue, in particular, is of great significance. As a result of Brexit UK citizens will no longer be EU citizens, or will they? According to Article 9 of the Treaty on European Union and Article 20 of the Treaty on the Functioning of the European Union, every person granted a citizenship of a Member State is automatically a citizen of the EU. This citizenship shall be additional to and not replace national citizenship (Treaty on the Functioning of the European Union, 2016). As a rational consequence of the withdrawal from the EU, many would automatically assume that Brexit results in the European Union citizenship ceasing to exist for UK nationals. To cure this problem, many scholars and commentators proposed an idea of an associate EU citizenship claiming that the UK citizens ‘can never become the victims of Brexit’ (Read, 2019). But what is this associate EU citizenship?

The UK referendum and its result triggered Article 50 of the Treaty on European Union – the withdrawal process – meaning that all UK citizens will lose their EU citizenship unless they are citizens of any other EU Member State (Van Den Brink and Kochenov, 2019). The fear of Brexit increased UK citizens’ applications for other citizenships, i.e. Irish (Kelleher, 2018), Swedish (The Local, 2017), etc. As already indicated, some ideas were offered to combat this issue. The proposal of associate citizenship by European Parliament member Verhofstadt (Ross and Rankin, 2017) is noteworthy. It suggests the continuation of EU citizenship rights, such as free movement to live and work across the EU and vote in the European Parliament after Brexit for the citizens who will request it on an individual basis (Hughes, 2017). Other alternatives following a similar tone set by Verhofstadt were provided, for example, Prof Kostakopoulou in her article highlighted the need to consider possible citizenship templates and argued in support of EU protected citizen status (2018). Another interesting possibility is the ‘green card’ proposal extending the EU citizenship rights to the UK citizens who register for it (De Mars and Miller, 2018). And lastly, Brexit also gave rise to civic mobilisation, including the European Citizens’ Initiative from 2017, which suggested some solutions to avoid the possible risks of collective loss of Union citizenship.

The idea of associate citizenship was introduced in 2016 by Verhofstadt, one of the Brexit coordinators and is still supported by London Mayor Sadiq Khan (Boffey, 2020). The negotiations between EU and the UK about the form of associate citizenship would include the enjoyment of the four freedoms (free movement of goods, services, capital, and persons) and the right to vote in certain elections. However, the right to vote would most probably require some alterations to the current structure of the European parliament. Furthermore, the status of associate citizenship could also protect the rights in healthcare, welfare, and workplace conditions etc. (Fowles, 2020; Boffey, 2020). The key features of associate citizenship would depend on the success of the negotiations and the content of the version of associate citizenship eventually accepted and adopted by the EU and the Member States (Fowles, 2020; Boffey, 2020). The associate citizenship does not exist at the moment, but its supporters will try to do everything to convince the Member States to engage with this issue. They also proposed that this special status might require a written oath or a fee/tax payment from the applicants (De Mars and Miller, 2018). Also, many, if not all of these proposed changes would require amendments to the EU treaties, even though, to the contrary, some believe that the associate citizenship does not require any change in treaties (De Mars and Miller, 2018). Moreover, as mentioned before, it is questionable whether Member States would want to engage with this issue at all regarding its possible unlawfulness under EU legislation (Boffey, 2020). However, the case-law of the Court of Justice of the European Union may point to the other direction and actually indicate the opposite.

One of the cases of the CJEU where it directly dealt with the issue of citizenship law is the case of Janko Rottmann v. Freistaat Bayern (2010) who was rendered stateless as a result of Germany’s choice to withdraw his German nationality because of his fraudulent behaviour. The CJEU stated that even though it is within the competence of Member States to regulate nationality rules, measures of the Member State regarding the withdrawal of citizenship and depriving a person of their EU citizenship need to be proportionate in order to have ‘due regard to EU law’ (§ 32). In its reasoning, it also referenced to the Grzelczyk case, clearly stating that ‘citizenship of the Union is intended to be the fundamental status of nationals of the Member States’ (§ 43). The Rottmann case was considered a landmark case because of the Court’s active approach and its will ‘to challenge Member States autonomy in nationality matters’ (de Groott and Seling, 2011). The CJEU, in its ruling, discussed for the first time the problem of the amount of discretion that Member States have when they decide who their nationals are (Poiares Maduro, 2008).

The recent Tjebbes judgment (CJEU, Tjebbes and Others v. Minister van Buitenlandse Zaken, 2019) provides a follow-up to Rottmann and may be of particular importance to British nationals currently. The judgment is interesting in relation to the UK becoming a third-party vis-à-vis the EU. The case concern Dutch nationals, who were not living in the EU, and were also the nationals of another non-EU state. These citizens with more than one nationality separately applied for a Dutch passport and were turned down (§ 10). The reason behind it was that Dutch law tried to avoid the undesirable effects of multiple citizenships and at the same time, its role was to prevent people from obtaining or retaining Dutch nationality when there is an absence or loss of genuine link with the country (§ 5).

In Tjebbes case, the CJEU reaffirms that the situation of the applicants who face the loss of nationality and thus loss of EU citizenship, falls ‘by reason of its nature and its consequences within the ambit of EU law’ (Tjebbes and Others, § 32). The court also held that the actions of the Netherlands were legitimate. However, in Tjebbes, there was a strong additional caveat stating that the loss of nationality would be inconsistent with the principle of proportionality if the relevant national rules do not allow for ‘an individual examination of the consequences of that loss for the persons concerned from the point of view of EU law’ (Tjebbes and Others § 41; Vlieks, 2019) at any time by the competent national authorities and national courts, including the possibility to recover nationality ex tunc (from the outset) for the person concerned – where appropriate (Tjebbes and Others, § 40-42). The examination involves an individual assessment of the situation of whether the loss of EU citizenship might ‘disproportionately affect the normal development of his or her family and professional life from the point of view of EU law’ (Tjebbes and Others, § 44).

When we take into consideration the CJEU’s case law on nationality matters, it is clear that Tjebbes undoubtedly represents the next step in this regard. The case supports the opinion that the loss of a Member State nationality raises an issue under EU law (Vlieks, 2019). On one hand, the CJEU gives Member States adequate discretion to state who their nationals are, but on the other hand, it showed that it has to look out for the individual consequences of that loss from the EU law point of view. Can the UK nationals affected by Brexit later argue that deprivation of their EU citizenship has disproportionate consequences to their family and professional life (Goldsmith, 2019)? The UK citizens should be wary of the future CJEU’s judgments.

Concluding, associate citizenship and other similar proposals make sense in some regard. However, when most of the citizens of a certain Member State collectively express their desire not to belong to the EU, it is up to a Member State to respect it and express it (van den Brink and Kochenov, 2019).

In my opinion, the case of Tjebbes demonstrates that the CJEU is not afraid to intervene to some extent with the Member States’ nationality laws. This decision highlights the fact that EU law can provide supplementary protection with regards to the loss of nationality under certain conditions – something that was exclusively within the competences of the EU Member States.

In relation to Brexit, the UK nationals who want to keep their EU citizenship may – in light of the Tjebbes ruling – try to seek out a favourable judgement of the CJEU arguing that should they be deprived of their EU citizenship, it could affect their family and personal life which would lead to the disproportionate consequences. Even though the EU treaties state that EU citizenship is additional to national citizenship and shall not replace it, the Tjebbes case, in some respect makes us believe otherwise. The development of the CJEU case law will in near future demonstrate to what extent is the associate citizenship proposal possible under EU law and how far is the court willing to go in protecting the EU citizenship status.

By Zuzana Petrová


This material was published in Lawyr.it Vol. 6, September 2020, available only online.



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European Union Legal Sources

Consolidated Version of the Treaty on European Union OJ C202/1 [2016].

Consolidated Version of the Treaty on the Functioning of the European Union OJ C202/1 [2016].


Janko Rottmann v. Freistaat Bayern [2010] Case no. C-135/08. European Court Reports, I, 01449, pp. 1467 – 1492.

Opinion of AG Poiares Maduro [2009] in Case C-135/08 Janko Rottmann v. Freistaat Bayern ECLI:EU:C:2009:588, para. 1.

Tjebbes and Others v. Minister van Buitenlandse Zaken [2019] Case no. C-221/17. ECLI:EU:C:2019:189.

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