British In Europe: Double-Dutch In Amsterdam’s District Court

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Earlier this month, a group of British expats living in the Netherlands, succeeded in their attempt to refer the question of their EU citizens’ rights, to the European Court Of Justice (ECJ). In what appears to be a surprising and disappointing development, the Dutch state has succeeded in launching an appeal against the ruling. The immediate consequences of the lodged appeal, is that the ECJ will have to defer presiding over the case brought forward to it, by the British citizens. In the worse case scenario, the decision to allow the case to be heard in Luxemburg, might even be reversed.

If you needed proof that British citizens, living in a EU-27 member state, will be used as bargaining chips, you don’t have to look any further than this court case. The chips are well and truly still in the oven, and there’s a distinct smell of burning potatoes, all across the EU.

The important question that arises from the appeal, regardless of whether it succeeds or not, is why it was launched in the first place, and what grievances the Dutch state will base its appeal on. It seems to me that there are two aspects of the Dutch response to the court case that need to be touched upon. The first, concerns the Netherlands’ attitude towards British citizens, living on Dutch soil, in the context of a “hard Brexit”, or in the event of a “no-deal Brexit”. The second, concerns the relationship that the Dutch have with the EU, and the role that they wish to play, within the EU-27.

The best way to understand what is going on, is to act stupid, and ask silly questions. Socrates was really good at doing just that, always saying, “ the only thing I know, is that I know nothing.”


  • “What is the problem being posed by the British citizens, living in the Netherlands?’’

The question posed was that of acquired rights. As British citizens living in an EU member state, and having moved from one member state to another, we have exercised EU rights. Could these be taken away, or modified, because the UK suddenly decided to leave the Union? One thing is certain: as British expats, we are not covered by the Vienna Convention on the Law of Treaties, dating from 1968, which states that treaties cannot be annulled retroactively. The Convention applies to states, and not individuals, not forgetting that France didn’t even sign it.


  •  “Why were the Dutch state and Amsterdam council, represented at the hearing?”

The case was surely a matter for the judge and the British citizens who brought the case to the hearing. From what I have read, the main argument for opposing the expats’ request, is that they have taken their case to the wrong court. As lawyer representing the Dutch state, Erik Pijnacker Hordijk, said, “If British citizens believe they have a legal right to a particular treatment post-Brexit, they should direct themselves to their own government or a British judge.”

Silly me. There was I, thinking that EU citizenship was handed out by the EU. In fact, it’s not handed out by anybody. It occurs automatically, once your country is a member of the EU. In any case, what have the Dutch to do with it? Irrespective of the fact that British citizens are filing a demand on Dutch soil, the only court that can decide on whether EU rights can be altered retroactively, is the ECJ. In the same way, if I enter a hairdresser’s, saying that someone had stolen a loaf of bread that I was carrying, and asking how can I complain, the hairdresser would direct me to the police station, to file a complaint. He would not prevent me from doing anything, by reasoning that it was only the baker who could tell me what to do, since I bought my bread there.


  • “Why didn’t the British citizens go directly to the ECJ?”

This is a question that even the British in the Netherlands could not answer, thinking that going through a Dutch court was, “the right thing to do.” But was it, or am I wrong in thinking that for the correct application and/or interpretation of EU law, you can address the ECJ directly? Do note that this is a question that I am posing, and not a judgement on the court case. Let me quote the ECJ, on this,

If you – as a private individual or as a company – have suffered damage as a result of action or inaction by an EU  institution or its staff, you can take action against them in the Court, in one of 2 ways:

  • indirectly through national courts (which may decide to refer the case to the Court of Justice)
  • directly before the General Court – if a decision by an EU institution has affected you directly and individually.

If you feel that the authorities in any country have infringed EU law, you must follow the official complaints procedure.

There may be a case for the British citizens in the Netherlands, arguing that, by agreeing the first phase of the Brexit negotiations, without guaranteeing the freedom of movement of British citizens already living in a EU-27 member state, at the time of Brexit, the EU’s decision is affecting British expats, directly and individually. The General Court of the ECJ has the power to hear and act on the complaint,

The General Court has jurisdiction to hear and determine:

  • actions brought by natural or legal persons against acts of the institutions, bodies, offices or agencies of the European Union (which are addressed to them or are of direct and individual concern to them) and against regulatory acts (which concern them directly and which do not entail implementing measures) or against a failure to act on the part of those institutions, bodies, offices or agencies…


  • This is really about economics, isn’t it?

I’ve nearly finished a post about the world-famous “tolerance”, so characteristic of Dutch society. I think that I’ll add a few nuances, before I publish. In the deepness of their souls, the Dutch are probably just as self-centered as the rest of us mortals. Of all the countries in the EU-27, the Netherlands have the most to lose if Brexit does finally materialise. The UK is one of the Netherland’s biggest trading partners, accounting for over 3% of total employment, and roughly 3% of nominal Dutch GDP. The latter could be reduced by 2-3 percentage points, after Brexit. No wonder that the Dutch are “playing it cool” with the fate of a handful of British citizens, living on their soil. This attitude, of course, is in stark contrast with a detailed report, published by the Dutch parliament, stating that,

The treaty on the European Economic Area and the treaty between the European Union and Switzerland on the free movement of people provide that in the case of withdrawal from the treaty, the rights shall be guaranteed of people who have already exercised these rights. A similar provision should also be included in the EU exit treaty and the new treaty with the UK.

Well, where as all that fancy talk gone to, I ask myself?


  • EU classmates – The Good, the Bad, and the Ugly

 Whereas some EU-27 member states are still abusing the intrinsic charms of democracy, whilst, at the same time, wanting to reap the fruits of the single market, others – in particular, the founding member states – want to save the EU, at all costs, but ignore its profound need for reform. The Netherlands is all too happy to play “Mister good-guy”, in acting tough with the bad old Brits, even if it does mean hurting a few innocent by-standers, who didn’t even have the decency to take up Dutch nationality, in the first place. The Dutch have already persuaded the European Medicines Agency to take a seat by the more than murky waters of the Amsterdam canals, even though the luck of a draw had more to do with it, than the love of Amsterdam. They probably hope that more will come, as Brexit looms ever closer. Other founding members are also hoping to attract more business from the UK – financial services, in particular. The Netherlands wishes, more than most, to remain in the running for extra business, to compensate the probable loss in revenue, when dealing with a new arrival in the class of WTO nations.

If the brave efforts of the British in the Netherlands, fail to take their woes all the way to Luxemburg, it will demonstrate, once again, that the interest of national governments and powerful economic groups, take precedence over the well-founded interest of individuals. As British expats, we are not asking for much, only that our lives continue, unchanged. Surely that’s no big “ask”, and not so hard to understand, or is it all double-Dutch?