Could the European Court of Justice really rule on Brexit?

By 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?


Not Amused

“It’s for UK lawyers to start thinking of ideas”

I think you meant to write “It’s for individual UK lawyers who are personally committed to a rabid and dogmatic belief that they should do everything within their power to overturn the will of 17.4 million people and protect this sclerotic and redundant institution to start thinking of ideas for how best to lie to the public”

Just let it go guys. Let it go.



Yawn. Nobody gives a shit mate.



The irony of your last sentence, when every one of your posts lately is moaning about remainers…



Okay, we will let it go. Just like you Eurosceptics “let it go” after the UK joined the EU. I mean, we haven’t heard a peep out of you for 40 years! Perhaps we should take a leaf from your book?



Well, like Farage said late on 23 June in his premature concession of defeat speech: “we may have lost the battle but we will win the war”.

He wasn’t going away if he lost, and given the current chaos that is the Brexit plan, it doesn’t seem prudent for any REMAIN voter to give the government a free hand either.



So, what do you remainers want, exactly?

More and more referenda until you get the result you want?


The Ghost Of Keynes Vomiting On a Loop

If it avoids this country jumping off a cliff into the economic void err yeah !


Dublin BL

Not Amused is arguing like a Katie a Hopkins. “You lost, so you are no longer entitled to an opinion” (however learned or informed it may be)



Give over woman, for the love of God… 🙁



That was directed at NotRemotelyAmusing obviously – not Katie K



Here is a simple one. Who gives anyone the right to take away someone’s EU citizenship? When we leave the EU as a country, I see absolutely no legal reason why anyone should loose their citizenship. That is a personal right. It would be the equivalent of Scotland leaving the United Kingdom and every Scot loosing the British passport, even the Union loving ones. It would not be legal in the UK, so why would it be legal in the EU?



I dunno, southern Irish unionists might disagree with your analysis.



The problem with this comment is that Republic of Ireland citizens had the right to reside, work and vote in the UK once the Republic was an independent state. This is independent of any EU legislation, and you will note includes the right to vote in all UK elections (which is not a right EU citizens have). This even included the right to vote in the EU referendum.

Following that line of logic it would seem that UK citizens would retain their EU rights. I doubt that will happen though.


Just Anonymous

Err, what?

You can’t see how it would be legal for the UK to refuse citizenship to the inhabitants of what would then be a separate and independent country?

You might want to rethink your analysis…



The person making the point about post Independence Ireland is correct. Their point is spot on.



You are dim. Any nuance was lost on you.


Just Anonymous

Thank you for that response. When you think of a rational rebuttal (if you ever do) feel free to share.



I think you need to spell check your posts, it is lose not loose. Second, the European Union Citizenship is an addition to citizenship of an EU member state, you cannot have EU citizenship independent of citizenship of an EU member state because the EU as a nation does not exist, it is in fact a legal fiction in many ways. Therefore, when you are a citizen of a country that is no longer a member of the EU, you automatically lose your EU citizenship because it does not exist in and of itself.



Jolyon Maugham QC tweeted to say he was involved with a CJEU reference from a country outside the UK – anyone know anything further?



Why has this been down-thumbed ?

The guy is just asking a question… :-S



Because Legal Cheek comments section.



I hear DWF, Addleshaw and Irwin Mitchell are all in completion re: tenders for taking this matter to the ECJ.




Hah. Even more delay, even more indignant fury, even more footage of Farage whinging on the BBC, even more chance of Boris the Bellend making further gaffes and even more pensioners’ meetings (like the one going on now) at Parliament Sq,

Bring it on…. 🙂


Ciaran Goggins

You draw a line. Say we leave on this date (lets say 23 June 18) and leave. If anyone gets in the way, knock em out of it.


Comments are closed.