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Just how guaranteed are the rights of Britons living in Europe?

With the UK government prepared to override parts of the Brexit Withdrawal Agreement and the EU responding by launching legal action on Thursday, should Britons in the EU be worried about their future rights?

Published: 1 October 2020 15:51 CEST

Just how guaranteed are the rights of Britons living in Europe?

Britain's Prime Minister Boris Johnson greets European Commission President Ursula von der Leyen outside 10 Downing Street in central London. AFP

Ever since the UK government provoked anger in Brussels by admitting it was prepared to break international law to override parts of the Brexit Withdrawal agreement, Brits living in the EU have understandably become twitchy once again.

After years living in limbo, their rights and futures were eventually guaranteed by the ratification of the Withdrawal Agreement in January 2020.

The Withdrawal Agreement sets out the principle, with certain caveats, that British people who are already resident in the EU by December 31st 2020 can stay there.

As such it is a crucial document to the nearly 1 million British people who have made their homes in Europe – but the escalating row between London and Brussels over the document is making many nervous.

After the UK government put forward legislation that would give them the power to override parts of the Withdrawal Agreement, campaign group British in Europe said they had been inundated by queries from worried UK residents around Europe.

“We have been receiving anxious enquiries from our members about what a breach of the Northern Ireland Protocol could mean for the implementation of the citizens' rights chapter of the Withdrawal Agreement and for their futures,” said the statement.

“The Member States will rightly now question whether the UK will honour its obligations towards over three million EU citizens living within its borders.”

But how worried should Britons living in Europe be now that the row has escalated to the point where by the EU announced on Thursday it had launched legal action against Boris Johnson's government?

Firstly there is the question of how significant the launch of this legal action really is.

Seasoned commentators on Brexit and legal experts suggest the move by the EU, just like the UK government's controversial internal market legislation, is all part of a sideshow around the tense but ongoing talks to reach a trade deal.

“Ultimately this may be political theatre on the EU side, to match the UK. There are lots of 'off ramps' in an infringement proceeding – most of these cases are settled before they ever reach the CJEU. It's possible for the case to be dropped if the bill is amended as part of a deal,” said Steve Peers, Professor of European human rights law at the University of Essex

But ultimately this may be political theatre on the EU side, to match the UK. There are lots of 'off ramps' in an infringement proceeding – most of these cases are settled before they ever reach the CJEU. Possible for case to be dropped if the bill is amended as part of a deal.

— Steve Peers (@StevePeers) October 1, 2020

In other words both sides are flexing their muscles to demonstrate they are prepared to walk away from talks on a trade deal, in the hope that it will push the other side towards accepting an agreement on their terms.

Can the Withdrawal Agreement be suspended?

But what about the law regarding the Withdrawal Agreement and resolving disputes between the two sides when they arise?

Under the Brexit divorce deal agreed and ratified by the UK and the EU 27, if a dispute arises between the EU and UK over the implementation of the Withdrawal Agreement then it can be settled by a joint committee.

If the committee cannot resolve the row then an arbitration panel selected by each side will be set up.

This panel has the job of issuing binding decisions and if those rulings are not complied with, then potential penalties and sanctions could follow.

In a worse case scenario parts of the Withdrawal Agreement could also be suspended, but crucially the part relating to citizens' rights cannot be.

In an even more extreme scenario, experts believe the Withdrawal Agreement provisions are also protected under the Vienna Convention of the Law of Treaties, which means the UK or the EU 27 would not simply be able to terminate the treaty.

What about implementation?

What is likely to be more of a real concern to Brits around the EU right now is not the legal wrangle or the fraught trade talks, it's the moves made by each EU country to enshrine the rights guaranteed by the Brexit agreement into national law.

There are no particular concerns that EU countries won't do what is necessary, even in France which has yet to start accepting residency applications for the 150,000 to 300,000 British residents.

But if issues do arise and there are disputes over citizens' rights then Brits in the EU do have some protection.

A special committee will try to resolve disputes and for the next eight years the Court of Justice of the European Union will continue to have jurisdiction over disputes involving citizens' rights in both the UK and the EU.

When it comes to implementing the Withdrawal Agreement the EU Commission has the job of closely monitoring the measures taken in each country.

The commission says: “The implementation and application of citizens' rights in the EU will be monitored by the Commission acting in conformity with the Union Treaties. In the United Kingdom, this role will be fulfilled by an independent national authority.

“The Authority and the European Commission shall inform each other annually through the Joint Committee established by the Withdrawal Agreement of the measures taken to implement and enforce the citizens' rights under the Agreement. Such information should include in particular the number and nature of complaints treated and any follow up legal action taken.”

But what about in reality?

While governments and the EU commission may genuinely be looking after the rights of Brits in the EU, there may however be problems at a more local level.

Brexit and its impact is understandably hard to get to grips with for business owners around Europe, some of whole may jump to the wrong conclusion that because Britain was leaving the EU, that meant British citizens had lost their right to work in the country.

This seems to have been the case in France where several people have reported job adverts either specifically limited to EU passport holders or stating that British applicants will not be considered.

And the confusion over the status of British people has already lead to some people being wrongly asked to supply extra paperwork in relation to employment, driving and receiving benefits.

These type of incidents will likely become more and more common and it will often be left up to individuals to explain our rights.

But all in all, Brits in the EU shouldn't worry too much about the impact the escalating spat between Brussels and London will have on their rights to stay in the countries they have made their homes.

But can the same be said for EU citizens in the UK?

“It's unlikely that there will be any push-back on citizens' rights from the EU side,” said Kalba Meadows from British in Europe.

“It's more a question of good faith (or lack of it) and the message that it sends to the EU that if the UK can't be trusted to honour one part of the Withdrawal Agreement, can it really be trusted to implement the citizens' rights parts?”

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Faced with Russia’s war in Ukraine, the potential return of Donald Trump as US president and competition from China, the new commission will need to steward the EU at a time of global uncertainty.

To confront the challenges, von der Leyen handed powerful economic portfolios to France, Spain and Italy — with a hard-right candidate from Rome taking a top role in a commission seen shifting broadly rightward.

“It’s about strengthening our tech sovereignty, our security and our democracy,” the commission chief said as she announced the team at the European Parliament in Strasbourg.

France’s outgoing foreign minister Stephane Sejourne was handed an executive vice president role overseeing industrial strategy, after von der Leyen ousted Paris’s first nominee.

Spain’s Teresa Ribera, a socialist climate campaigner, was also made an executive vice president, tasked with overseeing competition and the bloc’s transition toward carbon neutrality.

As Russia’s war against Ukraine grinds on through a third year, security and defence assumed a new prominence.

Former Lithuanian prime minister Andrius Kubilius landed a new defence role overseeing the EU’s push to rearm, making him one of several hawkish Russia critics in eastern Europe to receive a prominent position.

Those also include Estonia’s ex-premier Kaja Kallas, already chosen by EU leaders as the bloc’s foreign policy chief.

And Finland, another country neighbouring Russia, saw its pick Henna Virkkunen given a weighty umbrella role including security and tech.

As part of the bloc’s careful balancing act, the German head of the EU executive had to choose the lineup for her second term from nominees put forward by the other 26 member states.

That has meant treading a political tightrope between the demands of competing national leaders — and putting some noses out of joint.

The highest-profile casualty was France’s first-choice candidate Thierry Breton, who quit suddenly as internal market commissioner on Monday accusing von der Leyen of pushing Paris to ditch him.

Von der Leyen fell short in her efforts at gender balance, ending up with 40 percent women after pressuring member states for female nominees.

But women obtained the lion’s share of executive VP roles, with four of six posts.

Controversial Italian pick

The choice of who gets which job is an indication of where Brussels wants to steer the European Union — and the weight commanded by member states and political groupings after EU Parliament elections in June.

Cementing its status as parliament’s biggest group, Von der Leyen’s centre-right European People’s Party commands 15 of 27 commission posts — to the chagrin of left-wing lawmakers like France’s Manon Aubry who warned of a lurch “far to the right” in terms of policies too.

Among the powerful vice presidents is Italy’s Raffaele Fitto, handed a cohesion brief in a nod to gains made by far-right parties in the June elections.

Giving a top role to a member of Prime Minister Giorgia Meloni’s post-fascist Brothers of Italy party has raised hackles among centrist and leftist groups — while Meloni said it “confirms the newfound central role of our nation in the EU”.

After Green party losses at the June ballot, whether climate would remain high on the agenda and which commissioners would steer green policy was a subject of scrutiny.

As well as Ribera’s overarching role, the centre-right Dutchman Wopke Hoekstra will carry on in a position handling climate and the push to make the EU carbon neutral.

Among other eye-catching choices, Croatia’s Dubravka Suica obtained a new role overseeing the Mediterranean region, and the enlargement gig went to Slovenia’s Marta Kos — yet to be confirmed as her country’s candidate.

Other important figures going forward look set to be Slovakia’s Maros Sefcovic, handling trade, and Poland’s Piotr Serafin, who will steer negotiations over the bloc’s next budget.

All would-be commissioners still need to win approval from the European Parliament, with hearings to start in coming weeks.

Lawmakers could flex their muscles by rejecting some candidates — or at least dragging them over the coals, as expected with Italy’s Fitto.

Chief among those suspected for the chopping block are Hungary’s Oliver Varhelyi, nationalist Prime Minister Viktor Orban’s man in Brussels these past five years, who received a diminished portfolio covering health and animal welfare.

The stated target is to have a new commission in place by November 1st, but diplomats say that looks ambitious, with December 1 more likely.