Steve Peers

A recent High Court decision mandates that the UK government must secure parliamentary approval before initiating Article 50, the process for exiting the European Union. While this post won’t delve into the national constitutional law aspects, it will examine the potential involvement of EU courts in Brexit disputes.

Following the government’s announced appeal to the Supreme Court, some have suggested a further “appeal” to the European Court of Justice (ECJ). However, this misunderstands the EU judicial system. Instead of direct appeals, national courts can pause proceedings to request the ECJ’s interpretation of specific EU law points. After the ECJ provides its interpretation, the national court resumes its proceedings, considering the ECJ’s input in its judgment. While the ECJ typically takes approximately 16 months for a ruling, it could expedite cases involving fundamental Brexit questions.

A key EU law question in this case is whether a notification to leave the EU under Article 50 is reversible. This is central to the UK case, which revolves around the “royal prerogative,” the inherent powers of the UK executive branch. The royal prerogative grants the executive power over international relations, including decisions related to international treaties. However, existing case law clarifies that the prerogative cannot supersede rights granted by Parliament. The High Court ruled that triggering Article 50 without parliamentary approval would violate this principle, as rights are conferred by the European Communities Act.

Logically, if an Article 50 notification is indeed reversible, the act of invoking it wouldn’t automatically eliminate rights granted by Parliament. Only a subsequent failure to revoke the notification would. Although the High Court presumed the notification’s irreversibility, this was based on an agreement between the involved parties, not a definitive legal interpretation. The claimants agreed to the irreversibility of the notification as a strategic move to strengthen their case, while the government’s agreement may have been to avoid political complications.

However, it’s not up to the parties involved to determine the proper interpretation of EU law. Article 267 of the Treaty on the Functioning of the European Union (TFEU) mandates that national courts of last resort must refer EU law questions to the ECJ if needed to reach a judgment. Consequently, the Supreme Court may request clarification on this issue.

The revocability of Article 50 extends beyond this particular case. It carries significant political weight, as some politicians advocate for a second referendum on the UK’s EU membership once the exit terms are clear. This proposition hinges on the ability to revoke an Article 50 notification, especially since the EU refuses to discuss exit terms before the notification is issued.

Should the Supreme Court choose not to refer the question to the ECJ, the matter might not end there. The ECJ’s judgment in the Kobler case established that Member States can be held liable for damages if their highest courts misinterpret EU law without seeking clarification from the ECJ. Consequently, individuals could sue in a lower UK court on these grounds. The lower court could then request the ECJ’s interpretation on the revocability issue, potentially blocking the government from issuing the Article 50 notification in the meantime.

There are other avenues for Brexit-related issues to reach the ECJ. Disputes could arise regarding the scope of an Article 50 withdrawal agreement, particularly whether it needs to be separate from a treaty outlining the post-Brexit relationship between the EU and the UK. Further issues could involve this future treaty, with some arguing that the EU is legally barred from negotiating such a treaty until the UK’s complete withdrawal. Others contend that the UK cannot engage in trade negotiations with non-EU countries before exiting the EU.

These issues could potentially reach the ECJ through Article 218 TFEU, which grants it jurisdiction over future agreements between the EU and non-EU states. Any Member State, along with the EU Commission, Council, or Parliament, could invoke this article. However, several questions arise. Does Article 218 apply to Article 50, given that the UK remains a member state and Article 50 only references certain parts of Article 218? Is it premature to deliberate on future EU-UK treaties before the Article 50 notification and subsequent negotiations?

Alternatively, Article 273 TFEU enables Member States to bring disputes with each other concerning EU law matters to the ECJ through a special agreement. However, this would require the UK’s willingness to utilize this provision and find another Member State to concur and jointly bring the issue before the ECJ.

Brexit-related issues might also surface in other Member States’ national courts. For instance, an Irish court recently affirmed the validity of European Arrest Warrants issued by the UK, even in light of Brexit. However, this issue is likely to resurface. UK citizens residing in the EU (and vice versa) might litigate against losing their EU citizenship.

Ultimately, the status of British goods, services, and citizens within the remaining EU will undoubtedly be raised in EU courts post-Brexit. This will likely occur through the interpretation of EU-UK treaties and/or through independent EU laws, such as those governing non-EU migration.

It seems highly probable that some aspect of Brexit will eventually be adjudicated by the EU courts. This prospect carries a certain irony.

Barnard & Peers: chapter 27

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