Could the European Court of Justice really rule on Brexit?

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By Katie King on

Legal Cheek speaks to some of the country’s top EU law experts to find out


Another day, another Brexit news story — yesterday’s being the revelation that the European Court of Justice (ECJ) could end up ruling on the United Kingdom’s withdrawal from the European Union.

This according to Koen Lenaerts (pictured below), the president of the ECJ, who no doubt infuriated Brexiters across the country this week when he told the Financial Times (£) that Article 50 can be interpreted by his court.


Though to some it may be a prospect that reeks of irony, Lenaerts revelation is not very revolutionary. Despite its celebrity status, Article 50 is contained in the Lisbon Treaty and is as much a piece of EU law as the next, and is therefore subject to judicial interpretation from the ECJ.

Though a reference to the ECJ on Brexit-related matters is, therefore, very possible, even Lenaerts admits:

I can’t even start intellectually beginning, imagining how and where and from which angle it might come.

It’s for UK lawyers to start thinking of ideas, and one that’s currently doing the rounds among the Twitter commentariat is reaching the ECJ through the Miller judicial review.

As our readers are no doubt aware, businesswoman Gina Miller (video below) launched a legal challenge against the government shortly after the EU referendum, arguing Article 50 cannot lawfully be triggered by royal prerogative alone and should be conditional on a free vote in parliament. The challenge was successful in the High Court and is now scheduled to be heard on appeal in the Supreme Court in December.

Though the Supreme Court is usually the end of the road for would-be litigants, many have speculated whether Lord Neuberger and colleagues could refer tricky legal questions arising in Miller up to the ECJ.

The answer, in short, is yes, but only if the question devised by the appeal court is one that falls within the scope of EU law and is therefore within the ECJ’s jurisdiction. It needs to be stressed that the questions central to the Miller challenge are concerned primarily with national law — something counsel for the claimant, Lord Pannick QC, was at pains to point out on day one of the High Court hearing — and therefore non-justiciable at EU level.

That doesn’t mean, however, that the eleven justices expected to sit on the Supreme Court bench for this case can’t put their heads together and think of an EU law question to refer. There are a number of questions that may fit this bill, perhaps the most obvious being whether the Article 50 notification is reversible. Professor Steve Peers, from the University of Essex, has a number of other suggestions:

Issues about the future relationship could also be raised in separate proceedings, such as whether the UK can talk to the EU or non-EU countries about trade before Brexit Day.

The University of Cambridge’s Professor Kenneth Armstrong throws some other ideas into the mix:

Any attempt to circumvent the procedural steps, or institutional prerogatives of the European parliament, under the Article 50 withdrawal could also result in litigation before the ECJ… The compatibility of a future EU-UK trade deal with the treaties could well become a litigious point. The likely flashpoint would be on the enforcement side, especially if it included a special tribunal to rule on infringements of the agreement. Note that the recent EU-Canada deal establishes an investment court system that may well be litigated before the European court for its compatibility with existing EU treaty obligations.

With a plethora of potential questions, it seems at least possible the Brexit legal drama will cross the channel and end up in a Luxembourg courtroom. If Professor Michael Dougan — of viral video and crazy out of office message fame — is to be believed, this is actually very likely:

Given the untested procedures and unexplored issues involved in leaving the EU, it would be rather surprising if novel or sensitive legal questions did not arise which then need clarification from the courts.

Though legal affairs junkies may delight at the possibility, Dougan — who has been tweeting about the Brexit saga along with other EU law professors at Liverpool — doesn’t share in the enthusiasm:

We have already witnessed the hysterical, vicious and ultimately anti-democratic reaction of Europhobic politicians and press to our own judges performing their legitimate constitutional role. So one can easily imagine the even more deranged and paranoid shrieking by the UKIP/Express/Daily Mail brigade when the first legal action is brought before the EU courts.

His advice? Well:

It might be an idea to buy each other some good earmuffs for Christmas?