There are many different ways that Britain’s departure from the EU could end up before the European Court of Justice, the president of the EU’s highest court has said, underlining the ECJ’s potentially pivotal role in the process.
In an interview with the Financial Times, Koen Lenaerts, Europe’s most senior judge, said that issues such as the treatment of Article 50, the legal path for a country to leave the bloc, “can be interpreted by our court like any other provision of union law”.
Mr Lenaerts declined to comment on the specifics of Brexit but warned that there were myriad unforeseen legal consequences of sovereign exit from the bloc that the EU’s top court might be called on to resolve. “I can’t even start intellectually beginning, imagining how and where and from which angle it might come,” said Mr Lenaerts.
Questions of EU law can be settled only in Luxembourg, meaning that the ECJ – held up by Brexiters as an apotheosis of EU interference – may be a decisive voice in disputes over exit terms.
Its opinion on whether Article 50 is revocable after a formal notification is a question that could be crucial for the political handling of Brexit in Westminster and Brussels. If a notification can be reversed, this will provide the UK with a means of changing course during the two years of negotiations.
The court’s jurisdiction would also stretch to the content of any exit deal.
Steve Peers, a professor of EU law at Essex University, wrote: “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.”
Even if the UK’s Supreme Court opts not to refer a question, the ECJ could become involved. Some senior EU officials argue that the UK remains bound by specific commitments made as a member, even after it has left the bloc and the treaties themselves cease to apply. This could leave Britain facing years of litigation in Luxembourg.
Britain’s Supreme Court will next month hear an appeal against a High Court ruling that required the government to seek parliamentary approval before triggering Article 50. The case rested on the assumption that Article 50 was irreversible. Although both sides in the case agreed that it was irrevocable, the matter could be revisited in the appeal, or raised in separate cases.
