Is the withdrawal procedure followed by the UK and the EU legal?

This is based around a blog piece by Aurélien ANTOINE a Professor of Law specialising in UK public law on the submission Advocat Fouchet has made on behalf of Harry Shindler and 12 others to the Tribunal of First Instance of the Court of Justice of the EU. The submission is asking for the EU Council’s decision to enter into negotiations with the UK on the terms of the UK’s withdrawal from the EU to be annulled.

A.   The Submission.

The submission has two main threads:

1.      Thread One.

  1. Infringement of the Euratom Treaty, contending that it requires a separate withdrawal and negotiating procedure.
  2. The EU’s decision confers an exceptional competence on the EU to negotiate the UK’s withdrawal and excludes the possibility of a mixed agreement with ratification by the Member States

2.      Thread Two.

  1. Infringement of the rights of ex-patriate EU citizens to be heard and vote in an election with a European scope and thus establishing a second-class group of citizens by denying their right to vote because they have exercised their freedom of movement and thus discriminating on the basis of residence.
  2. Infringement of the rights of citizens of British overseas territories and countries.
  • Infringing the principles of legal certainty and legitimate expectations by opening negotiations, the outcome of which is uncertain and which , the applicants say, will have a significant impact on the rights they derive from EU citizenship.

The submission asks that the court annuls the decision of the EU Council authorising the opening of negotiations with the UK for an agreement setting out the arrangements for the UK’s withdrawal from the EU.

The full submission lodged with the Tribunal of First Instance of the CJEU can be found here.

B.   Summary of conclusions from Aurélien ANTOINE – Professor of Law, Jean Monnet University, St Etienne

The conclusions in the article by Aurélien ANTOINE –  original French here, English Google translated version here, can be summarised as:

1.      First Thread

  1. The UK signed up to Euratom as part of signing up to the EEA (1972) and then the EU (2008). Thus withdrawing from the 1972 treaty means withdrawing from Euratom. In any event this could only be contested based on the conclusion of the negotiations not the opening of negotiations.
  2. If the exit treaty is held to be of mixed EU/Member State competence then this is a matter relevant to questioning the eventual treaty not the opening of negotiations and thus has little chance of success.

2.      Second Thread

  1. This is exclusively a matter of UK (Member State) domestic law. The CJEU has only ruled on this in relation to European elections where the limitation of the right is disproportionate as in the case of somebody convicted of a serious crime and denied the right to vote in European elections. While the argument that the same ruling could be applied to a national referendum is interesting it is, nonetheless, very ambitious.
  2. The issues here are the same as in previous points but are addressed from a different perspective
  • The detail of the impact of any treaty negotiation is uncertain and the argument made seems less than solid.

Before the tribunal can consider these points it has to decide whether they can be heard by the tribunal.

Can the individuals bring the case to the tribunal. There are very limited circumstances where claimants, whether persons or corporations, can bring cases in the Tribunal.

They have to be directly and actually affected by the actions and not just the potential outcome of those actions. The actions have to be regulatory and not just preparatory. Extending the precedents quoted to this case could expand considerable the scope of the grounds for referral to the Tribunal.

The revocability of an Article 50 notification may have some relevance in determining this.

On all these issues, the TEU could legitimately stick to the preparatory nature of the decision and consider the request premature since the issues relate to the future agreement rather than the decision to open negotiations

Nevertheless, it may be that the revocability of an Article 50 notification, the separation of EU and Member State competences, and the exclusion of certain classes of persons from the referendum have to be determined in law before Brexit and the rights of EU citizens can be secured.

C.   Some background.

Aurélien ANTOINE is a Professor of Law at the University Jean Monnet, St Etienne, France and a member of the UK Constitutional Law Association. One of his specialisms is UK public and administrative law.

All referrals and court decisions rely on the use of preceding decisions/judgements and the argument(s) that they apply in the case being pursued. However, there is never just a binary outcome (win/lose, much less win/win) to a case just because it has been put forward.

Is it Judiciable, do the claimants have Standing, is the question within the court’s Jurisdiction, is the question in the Public Interest, and is the question Timely (neither premature nor too late), you can find our previous article on this here.

We have seen cases, not just Brexit related, rejected for one or more of these reasons. The difficulties of getting past these initial tests should never be underestimated.

Only once that initial stage is passed are the substantive issues argued in front of the court.


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Published by Grahame Pigney on behalf of The People’s Challenge Ltd.

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