EU citizenship: Still a Fundamental Status? 15 withdrawal of the UK from the EU automatically leads to the loss of the EU citizenship of UK nationals and the elimination of the rights and freedoms deriving from EU citizenship, and if it does not what conditions should then be imposed. The decision to make a reference has now been appealed to the superior Dutch courts, but if the case does reach the CJEU it may be expedited for rapid resolution given the obvious urgency of the situation. The issue being tested here is not the UK’s future compliance with EU citizenship rights, but rather that of another member state, where a group of concerned UK citizens are resident. This is, of course, a hugely political question for the CJEU to be faced with, and it is likely to find ways to dodge the bullet because of the negative impact such a judgment could have upon its credibility. The Dutch district court was faced with the argument, put forward by the defendants in the case (the Netherlands and the city of Amsterdam) that the question was merely a political issue not a legal question, and that the dispute – at this stage – was purely fictional. The judge concluded, however, that there was a real and present threat of harm flowing from the possibility of Brexit, including UK withdrawal without an agreement under Article 50 TEU. The CJEU may, to the contrary, conclude that this is – at this stage – a purely hypothetical dispute and so the request for certain questions to be answered under the reference procedure is inadmissible. Even if the reference is accepted as admissible, there are formidable obstacles to making the case that EU citizenship somehow maintains a life after Brexit,33 even though applicants see themselves as relying upon the logical consequences of the line of case law leading up to and beyond Ruiz Zambrano, which has been defended extra-judicially by no less a personage than the President of the CJEU himself.34 Perhaps the best that could be hoped for in terms of legal outcome for the applicants will not be the assertion that EU citizenship somehow continues as a status, but rather the sort of ‘freezing’ of basic rights articulated for the very different case of Slovenia after the administrative ‘erasure’ of certain non-citizens following independence in 1992 and adjudicated in the Kuric case before the European Court of Human Rights.35 In fact, we do not really need the CJEU to tell us that 33 34 35 McCrea, R. (2018), ‘Brexit EU Citizenship Rights of UK Nationals and the Court of Justice’, UK Constitutional Law Blog, 8 February 2018, available at https://ukconstitutionallaw.org/2018/02/08/ ronan-mccrea-brexit-eu-citizenship-rights-of-uk-nationals-and-the-court-ofjustice/. Lenaerts, K. (2015), ‘EU citizenship and the European Court of Justice’s ‘stone-by-stone’ approach’, International Comparative Jurisprudence 1(1): 1–10. See above n.26.