researchbriefings.files.parliament.uk/documents/CBP-7763/CBP-7763.pdf
House of Commons Library Briefing Paper
Brexit: Article 50 TEU and the EU Court
Published 14/11/2016
Contents
- An 'appeal' to the EU Court?
- CJEU preliminary hearings
- To refer or not to refer?
Some extracts:
SUMMARY
The ‘acte clair’ doctrine
If a court of last instance has some uncertainty as to the correct interpretation of EU law, it must refer a question on the interpretation of EU law or the EU Treaties to the CJEU, but not if the national court decides something is clear “beyond reasonable doubt”. This is known as the ‘acte clair’ doctrine, and it has been established in the case law of the CJEU (largely in CILFIT ).
The case of Gina Miller at the High Court
In Miller the Court recorded it as common ground that the Article 50(2) notice is irrevocable and therefore the High Court did not rule on this point. It ruled that the UK Government could not trigger Article 50 TEU without parliamentary involvement. The irrevocability of Article 50 was an important underlying factor, even though the Court did not rule on this point.
The Government has appealed the decision to the Supreme Court. Its skeleton grounds for appeal do not mention irrevocability.
The question of whether a notice of withdrawal can be revoked
There is a general principle of international law, set out in Article 68 of the Vienna Convention on the Law of Treaties , that a notification of intention to withdraw from a treaty “may be revoked at any time before it takes effect”. This provision does not override any specific arrangements in a treaty.
The EU Treaty is silent on this matter, and although the parties to the Miller case assumed that notice of withdrawal is irrevocable, there are possible arguments, and a preponderance of academic opinion, to the contrary.
If the CJEU were to rule on the revocability question, it would interpret purposively and not according to academic opinion. While academic views are non-determinative, the CJEU might “take account of” what the Vienna Convention says.
2.1 Article 267 TFEU
There is no ‘appeal’ as such from a national court to the Court of Justice of the European Union (CJEU). Article 267 of the Treaty on the Functioning of the European Union (TFEU) provides a mechanism whereby a national court refers a question of the interpretation of EU law or Treaties to the CJEU. In these cases the national court suspends proceedings, and once the CJEU has given its ruling, the national court resumes its proceedings and gives judgment in the light of the EU Court’s preliminary ruling. The process usually takes around 16 months.
16 months!!!? Some how I think if it happens the case will be fast tracked but still!
Article 267 states:
The Court of Justice of the European Union shall have jurisdiction to give preliminary rulings concerning: (a) the interpretation of the Treaties; (b) the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union; Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court to give a ruling thereon. Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court. If such a question is raised in a case pending before a court or tribunal of a Member State with regard to a person in custody, the Court of Justice of the European Union shall act with the minimum of delay.
Minimum delay. Well that's something at least.
2.3 Damages for not referring
The EU Court’s judgment in Köbler , September 2003, established that applicants can claim damages from the supreme court of a Member State for not referring a question when it was obliged to do so. In Ferreira da Silva , September 2015, when the Portuguese Supreme Court refused to refer a question to the EU Court, arguing that its interpretation of “transfer of a business” was beyond reasonable doubt, the applicants started a new case, claiming damages from the Supreme Court for failing to refer a question when it was obliged to do so.
So if the Supreme Court does have a referral, then the UK government might have to choose between waiting so it can use the Royal Prerog or just going through parliament. It seems to me, however, if say the Scottish government joined the case and asked for a referral to determine reversibility (which seems like a good idea to me), then the case might have to go to the ECJ whether they choose the parliamentary route or the prerog route otherwise they leave themselves potentially open to damages.
Or so I thought. Except its not that simple!
3. To refer or not to refer?
3.1 Experts disagree
Opinions among academics and constitutional lawyers differ on whether the Supreme Court would be obliged to refer a question to the CJEU in connection with Article 50 TEU. Questions concern the revocability or not of Article 50 TEU and the phrase in Article 50(1) that a decision to withdraw from the EU should be in accordance with a Member State’s “own constitutional requirements“. Neither of these points was argued in Miller . Albert Sánchez Graells, Senior Lecturer in Law at the University of Bristol Law School, writes that referral to the CJEU is “legally unavoidable” and “not doing so triggers a risk of infringement of EU law by the UK due to the acts (or omission, in this case) of its highest court”.
On the other hand, Mikolaj Barczentewicz, University of Oxford, argues that the Supreme Court should not refer to the CJEU: … it is at the very least arguable that Parliament did not intend for EU rules, like the duty to make references to the EU Court, to have any effect in UK law in matters of withdrawal from the EU. This would mean that, in UK law, the Supreme Court would have neither duty, nor even a power to make the reference.
The reference would not be an option. It would be for the Supreme Court to interpret Article 50 TEU alone and with final authority, just like domestic courts routinely interpret international law.
Article 50(1) states that a Member State may decide to leave the EU “in accordance with its own constitutional arrangements“. Although this was not argued in Miller , some commentators thought this might make the national process for serving an Article 50 notice a matter of EU law.
But the recent case of Shindler indicates otherwise. Here the Court of Appeal suggested that the legislative choice made by Parliament in enacting the ECA was only to make provision for the effect of EU law to the extent the UK remains a Member of the EU.
Oliver Garner, European University Institute, says the decision to notify is an internal constitutional requirement, which “does not yet fall within the scope of the Court of Justice’s interpretative authority because the relevant EU law – Article 50 – has not yet been activated”. On the other hand, Garner continues, if the UK triggered Article 50 TEU and then attempted unilaterally to revoke this notice by Prerogative powers which were challenged in the UK courts, the UK courts would be under an obligation to refer to the CJEU under Article 267 TFEU.
So referral might be
a) legally unavoidable
b) not needed as the Supreme Court has the power to make the decision about whether its reversible or not under its own authority
c) the Supreme Court does not have the authority to refer until AFTER a50 is triggered. Then if it was needed it could be referred to the ECJ. (But since there was no guarantee of this at the point of a50 being triggered you would have to assume that it was not reversible unless the situation arose.
Phewww! Got that? Confusing as hell. I am betting that the government's change of tact could be down to a gamble that they contend b) that the Supreme Court has the power to rule that its reversible (as directed under the Vienna Convention). In which case the suggestion is that they can get rid of the challenge without an embarrassing referral to the ECJ because the case falls apart if it reversible.
Except it seems I am wrong on this point too!
3.3 Revocability and the Miller judgment
It is difficult to know how the revocability question affected the High Court’s judgment in Miller . In paragraph 51 the Court states that the effect of triggering Article 50 would be to deny the rights in section 2 (1) of the ECA, which enshrines Treaty rights and other directly applicable EU law into UK law. Article 50 notification, according to the Court, would strip the provision “of any practical effect”. Paragraphs 54-67 expand on this point and indicate that the Court accepted the claimant’s submission that it is the Article 50 notification, and the UK’s subsequent withdrawal from the EU, that would deprive the rights provided by the ECA of their effect. Putting aside the question of whether the ECA actually contains any domestic legal rights, a point debated extensively by constitutional lawyers, it is debatable how the revocability question would have altered the High Court’s reasoning had it been contested by the either the Government or the claimants. On the one hand, if Article 50 notification is revocable then it is at least legally possible that the act of notification would not have the effect of depriving EU law rights. On the other hand, even if the notice was legally revocable, the notice could still have the domestic legal effect identified by the High Court.
So the court could still in theory, decide that it's reversible but the government still can't use the royal prerog because of other issues anyway.
3.4 Arguments supporting revocability
Legal and political views
The European Council President, Donald Tusk, has said that revoking an Article 50 notification would be “formally, legally” possible. JeanClaude Piris, former director-general of the EU Council’s Legal Service, also believes “there is no legal obstacle to the UK changing its mind, in accordance with its constitutional requirements”.12 Lord Kerr, who as the UK’s Permanent Representative to the EU helped draft the EU exit clause in the Constitutional Treaty which preceded the Lisbon Treaty, told the BBC: “It is not irrevocable - you can change your mind while the process is going on”.
In evidence to the Lords EU Committee in March 2016, Professor Derrick Wyatt argued that there is nothing in the wording of Article 50 TEU to say that a country can’t change its mind:
"It is in accord with the general aims of the treaties that people stay in rather than rush out of the exit door. There is also the specific provision in Article 50 to the effect that, if a state withdraws, it has to apply to rejoin de novo. That only applies once you have left. If you could not change your mind after a year of thinking about it, but before you had withdrawn, you would then have to wait another year, withdraw and then apply to join again. That just does not make sense. Analysis of the text suggests that you are entitled to change your mind, but the politics of it would be completely different. But he also said “the politics of the referendum result would be likely to rule out that option”.
Sir David Edward, former Judge of the EU Court of Justice, said it was “absolutely clear that you cannot be forced to go through with it if you do not want to: for example, if there is a change of Government”. But he too speculated about the politics of the situation, and thought the other Member States might only allow the UK not to withdraw after notification if it went “back to zero”; there would be “no new optouts”.
Paul Craig, Professor of English Law University of Oxford, believes Article 50 is revocable because of the relevant principles of international law and for practical political reasons. Alan Renwick, Deputy Director of The Constitution Unit, thought political reality might take over, and the other 27 Member States would allow the UK to change its mind if they wanted the UK to stay in the EU. But, he cautioned: … that would again require unanimity – either to amend Article 50 (and we know how much effort is required to change an EU treaty) or, in effect, to extend permanently the two-year negotiation window. Hence, any member state could drive a hard bargain, potentially one detrimental to the UK.
The former Liberal Democrat MEP, Andrew Duff, also regarded revocability as a political as well as a legal issue:
That Article 50 is silent on the matter of revocation does not mean that a change of direction would be illegal under EU law (as long as the CJEU were convinced that the switch was constitutional). The EU is well practised in the art of the stopped clock. Given the collateral damage done to the remaining EU by Brexit, a notification that London had changed its mind would be met with very great, if somewhat exasperated relief
So of these experts most seem to suggest that it is in theory likely to be reversible, but some state it might be a bit more complicated than that, stating that
a) it might be legally possible but politically impossible
b) it might require a unanimous agreement by the other 27 states to allow it
c) there might be conditions attached to reversibility.
All that is about as clear as mud, but does offer an alternative explanation as to why the government might have changed tact and why it might not be as simple as it simply being reversibility if we feel like it too. All of which are important points and might affect how a50 is handled.