Thursday, 3 November 2016

Brexit: can the ECJ get involved?



Steve Peers

Today’s ruling by the High Court requires the government to obtain approval from Parliament if it wishes to trigger ‘Article 50’, ie the process of withdrawing from the European Union. This short post won’t focus on the national constitutional law issues, but on the process of possible involvement of the EU courts in Brexit disputes.

The government has announced its intention to appeal today’s ruling to the Supreme Court. Some have suggested that the case might then be ‘appealed’ to the ECJ, but this misunderstands the judicial system of the European Union. There is no ‘appeal’ from national courts to the ECJ. Rather a national court may suspend proceedings and ask the ECJ some questions relating to EU law that the national court believes it needs the answers to. After the ECJ gives the answers to those questions, the national court resumes its proceedings and gives its judgment in light of them. The ECJ normally takes about 16 months to give a ruling, although it could (and probably would) fast-track a case raising fundamental questions about Brexit.

What EU law questions arise in this case? The obvious one is whether a notification to leave the EU under Article 50 of the TEU can be revoked once it is given. This is relevant because at the heart of the UK case is a dispute about the ‘royal prerogative’, ie the underlying powers of the UK executive. The royal prerogative allows the executive to conduct international relations, including decisions relating to international treaties. But prior case law makes clear that the prerogative cannot extend to taking away rights conferred by Parliament. The High Court has ruled today that this is what would happen if the executive invoked Article 50, since rights are conferred by the European Communities Act.  

Yet logically if an Article 50 notification is revocable, then the decision would arguably not as such necessarily lead to the removal of rights conferred by Parliament. Only the subsequent failure to revoke it would. The High Court assumed in its judgment that the notification was not revocable, but that’s only because the parties agreed on this. The claimants agreed that an Article 50 notification was irrevocable because otherwise it would have weakened their case. The government agreed, perhaps because it would have been politically awkward to argue the opposite.

But it’s not up to parties in a national proceeding to decide on what the correct interpretation of EU law is. Article 267 TFEU says that final national courts must send questions of EU law to the ECJ if necessary to give judgment. So the Supreme Court may decide that it wants to have this question answered.

The revocability of Article 50 is not just an issue in this litigation. It’s a broader political issue, since some politicians would like there to be another referendum before the UK fully leaves the EU, once the public knows the terms of exit. That’s only a feasible suggestion if it is possible to revoke an Article 50 notification once it’s made, given that the EU refuses to discuss the terms of exit with the UK until that notification is made.

What if the Supreme Court decides not to refer to the ECJ – is that the end of the matter? Not quite. Since the ECJ judgment in Kobler, it’s established that a Member State can be liable in damages if its supreme court gets EU law wrong without asking the ECJ questions about it. So individuals could go to a lower UK court claiming damages on this basis, and the lower court might deem it necessary to clarify the point by asking the ECJ about revocability, perhaps ordering the government not to make the Article 50 notification in the meantime.

There are several other possibilities for Brexit issues to come before the CJEU. It might be disputed what could be included within the scope of an Article 50 withdrawal agreement, and in particular whether this must be separate from a treaty on the post-Brexit EU/UK relationship. There might be other issues about that latter treaty; some say that the EU legally cannot negotiate one until the UK has fully left. Many say that the UK cannot negotiate trade deals with non-EU countries until it has left.

How could such issues reach the Court? Article 218 TFEU allows it to rule on future treaties between the EU and non-EU states, so in principle could be used. Any Member State, or the EU Commission, Council or Parliament, could invoke it. A lot of issues arise here, though. Does Article 218 apply to Article 50 at all – since the UK hasn’t left yet, and Article 50 only refers to some parts of Article 218? Is it too soon (for now) to ask about future treaties between the UK and EU, given that notification and negotiations haven’t happened yet?

Alternatively, Article 273 TFEU allows Member States to bring a dispute with each other about issues related to EU law to the CJEU by special agreement. However, the UK would have to be willing to use this provision, and it would have to find another Member State to agree to do so, in order to bring issues before the ECJ.

Other issues may arise about Brexit, even in other Member States’ national courts. An Irish court has already ruled that European Arrest Warrants issued by the UK are still valid in light of Brexit. But this issue is likely to keep arising. UK citizens living in the EU (and vice versa) might want to litigate the argument that they cannot lose their EU citizenship.

In any event, the status of British goods, services and citizens in the remaining EU will doubtless be raised in the EU courts after Brexit, either by means of interpreting EU/UK treaties and/or autonomous EU laws (governing non-EU migration, for instance).

It’s probably only a matter of time before some aspect of the Brexit issue gets decided by the EU courts; and there’s no small irony in that prospect.

Barnard & Peers: chapter 27

Photo credit: Daily Express :)

20 comments:

  1. I guess the Supreme Court might send a preliminary ruling request to the ECJ. But is it worth the political risk? 1) Highest courts in all countries tend to be arrogant. 2) The UK is leaving. What's the point anyway? And 3) the whole premise of EU Law supremacy is under question here.

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    1. It is a political risk for the government, not the court. The UK Supreme Court has continued to ask the CJEU questions since the referendum vote. And the legal action does not as such question the supremacy of EU law; rather it's about the method of ending it. Having said that I wouldn't bet on it happening - although I expect a later case relating to different legal aspects of Brexit is rather more likely.

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    2. But surely it is not controversial (or even ironic) that the ECJ should decide on how article 50 should be interpreted? Though it works both ways because Article 50 states that notification to leave should be in accordance with the country's constitution. If the UK's consitution requires ratification of the final agreement by parliament before Brexit, then Article 50 *is* revocable. And the High Court has just re-affirmed the sovereignty of parliament...

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    3. I think it would be controversial, certainly if it is perceived as the ECJ ruling on whether Article 50 is triggered in the first place. But on the point you raise, the issue is whether 'national constitutional requirements' applies only up to the point that a) the decision to withdraw is made, b) the decision to withdraw is notified, or c) withdrawal takes place?

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  2. Doesn't the EU dimension come in earlier than you might think, and make yesterday's judgment even more curious? Suppose David Cameron on behalf of the Govt had formally sent a statement triggering Art.50 on 24 June. What could the English court then have done? Declared that Cameron couldn't do this? But he just had. Declared that the invocation was invalid? But surely that's a matter of EU law and not English law. In the same way, I'm not actually sure of the status of yesterday's judgment. If May (unthinkably) put up two fingers to the court and invoked Art.50, just what could the court do?

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  3. Francesco de Cecco4 November 2016 at 14:00

    I might be wrong on this, but it seems to me that yesterday's ruling stands even if the Art.50 notification is revocable. Let's assume that the Art.50 notification is indeed revocable, but that the Government does not revoke it. It is possible (though unlikely) that the 2 year deadline could lapse without a withdrawal agreement having been reached, and also without the European Council having reached the unanimity required to extend the deadline. In that event, the guillotine triggered by the exercise of the royal prerogative would sever EU rights from British right-holders without any parliamentary involvement. If this is correct, then there is no need for the Supreme Court to refer a question to the CJEU as to the revocability of the Article 50 notification.

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    1. In that scenario it would be the government's failure to revoke the notification which arguably terminates rights.

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    2. It strikes me that this might give rise to an interesting loophole. Let's say that the CJEU ruled that Article 50 is revocable. In this case, the Supreme Court might say that the government could unilaterally issue notice of departure, even though this raises the risk of the two year countdown expiring before Parliament has given its consent. If the High Court is correct in its judgement, then this would then become an unconstitutional situation. As Article 50 requires that withdrawal be in accordance with the withdrawing country's constitutional requirements, one could then say that at the end of the two year period, the UK would still need to be considered an EU member state unless and until Parliament granted its approval. In other words, the two year time limit could effectively be extended indefinitely by Parliament.

      In fact, the more I think about it, the more this seems possible no matter what the Supreme Court rules with regards to Article 50. Ultimately, the withdrawal of citizen rights *will* require an Act of Parliament at some point. Until that Act has been passed, the UK cannot have fulfilled its constitutional requirements, and therefore cannot have left the EU.

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    3. But if the Supreme Court says that invoking Article 50 without parliamentary involvement is fine, how could that process be challenged as unconstitutional on the same grounds later on? Unless the Supreme Court says that it's acceptable for the executive to invoke Article 50 now because Parliament could always intervene at some later point and force revocation? But even in that scenario, it would be up to Parliament whether to force revocation or not - unless the Supreme Court rules that Parliament has to be given an opportunity to approve the trigger retroactively at some later date, and if it fails to do so then the notification must be withdrawn? Even in *that* scenario, it would be the government's failure to withdraw notification (if Parliament required it) which would be unconstitutional.

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    4. Francesco de Cecco6 November 2016 at 12:12

      That's a very interesting point. However, the view that revocation allows retroactive approval by Parliament assumes that the UK has control over the timing even after notification. But what happens after notification (as opposed to before) is no longer within the UK's control. It's impossible to rule out a priori that withdrawal may just happen when it's too late for Parliament to step in, for instance because the government pursues an unrealistic strategy right up to the deadline. Does the UK have the legal power to stop the clock to allow for Westminster to have a say? Politically, this may well be possible, but the Supreme Court's ruling cannot make a constitutional safeguard depend on a future and uncertain event, such as a political decision, whether at UK or (even more so) at EU level.

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  4. I am particularly concerned regarding the backlash to the ruling of the High Court, despite its efforts to prove that it was ruling only on the method not on the "politics" of Brexit. To me it seems a bad idea that the government decided to appeal at all, given the persistence of the bad impression it gives of this country. The origin of the problem lies not so much in the desirability that parliament intervenes, but in the failure by the brexit team to clarify without any shadow of doubt what they intended by Brexit. That is the origin of the problem. It would indeed be ironic, a tragi-comedy if it were the European court of justice to decide on the modality of departure of a member state.......once more inevitably exposing the U.K. to ridicule. Our place is in Europe and that is where we should remain

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    1. Put simply the majority of the voting UK disagree with you they want to leave the EU. Remember when they voted last time it was for the common market not the mess that the EU is

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    2. Paul we are not leaving Europe and we will always have our place. It is even more blood curdling to read this piece and all these comments, what a mess the Eu is if it this complicated to leave, the Laws made have certainly outdone themselves. We as a country have voted to Leave, we should try and work together to make our exit the least unsettling and take the opportunity to show the World what a great Country we are, not squabbling like spoilt children. When I hear the younger generation crying, 'we are leaving Europe, I won't be able to holiday abroad, I will be stuck on this lonely little island' it makes me cringe to think this is the next generation of adults, how on earth will they manage to look after themselves or our Country! The Eu cannot keep telling or demanding what we can or cannot do, like a lady said a fews weeks ago this is just a change in our trade agreement arrangements nothing more or less. I must also add that reading this and all the comments has been very interesting and informative, thank you.

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  5. Any comment on the idea that whether Article 50 is validly triggered, resulting in inevitable loss of domestic law rights (if irrevocable), is a question on its terms and thus a question of EU law, falling to be determined by CJEU?

    Whether an Act of Parliament is required then becomes an issue of EU law because a Member State may only notify the European Council that it is leaving having followed "its own constitutional requirements". That wording, appearing as it does in ToEU, is EU law and is material to Miller given that the loss of rights at domestic law concerned would follow only from a lawful 50(2) notification.

    Not only then is irrevocability a matter that may require to be determined by CJEU, but so is the central issue of whether legislation is required - being as it is a question of a "constitutional requirement" in terms of 50(1).

    In any event, the CJEU might wisely determine that the constitutional requirements are those prescribed by UKSC, but an interesting question nonetheless. If UKSC were to accept the above analysis and consider that the "constitutional requirements" here are not acte clair, it would be bound - irrespective of parties' submissions on the point - to make a reference anyway.

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    1. I think the Court of Appeal was right to say in Schindler that 'constitutional requirements' is entirely up to UK law (and courts) to define. Whether that discretionary national power extends to the revocation of a notification of withdrawal is, however, a question of EU law.

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  6. I share Francesco's doubts about the relevance of revocability. Once Article 50 is triggered, withdrawal will occur in the absence of revocation of the notice. It matters little whether the notice is not revoked because it is irrevocable or because the government doesn't revoke it even though it could do so.

    The situation is analogous to the government passing a law without Parliamentary authority. This would clearly be ultra vires regardless of the fact that either the government or Parliament could repeal the law immediately (so that it produced no legal effect).

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  7. "failure by the brexit team to clarify without any shadow of doubt what they intended by Brexit"
    OH yes that's a smart idea! Bit like playing poker by showing your cards and trying to bluff.

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    1. I think this was a reference to the referendum debate. But as an argument against transparency of and public discussion of negotiations, it doesn't work either. The UK will disclose to the EU side its initial negotiation position anyway. There are many years of practice when the UK's position in talks about EU laws is discussed openly in Parliament, without the sky falling in.

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  8. Opinion seems to be growing on the academic and legal blogs that the question is not whether the UKSC will refer the case to the CJEU but how it could conceivably avoid it. No one, as far as I can tell, has considered the effect this will have on Theresa May's departure schedule.

    The UKSC expects to have its decision ready towards the end of January. If at that point it makes an Art 267 reference, it will take the CJEU around 15 months to deliver a preliminary ruling. So the case would return to the UKSC around March 2018. How much time do we need to wait for the final judgment from the UKSC? Two weeks? Four weeks? So (assuming the High Court does not get overruled on the point about the royal prerogative) around April 2018 the government might be able to introduce its Brexit bill. But that would be just a few months before parliament closes for the summer, so it could not be enacted before prorogation forces all unfinished business for the parliamentary year to be abandoned. So a Brexit bill could not be introduced until autumn 2018. How long would it take to pass through the Commons and Lords? Would it be adopted by March 2019? If so, that would leave the government about 12 months to negotiate with the EU before parliament closes for the 2020 election. Two years to negotiate an exit is an unfeasibly short deadline. Taking time out for an election makes it even more implausible that an exit agreement will be reached in time. It also means that membership of the EU will be the dominant issue in the 2020 election campaign.

    I must have made a mistake or several in these rough calculations. Corrections would be welcome.

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    1. You make a crucial assumption that the ECJ would not fast-track the case. It fast-tracked the Pringle case and decided it in 3 months. I would expect the same here. And there's not quite a consensus on the issue - several blogs question whether it would be necessary to refer.

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