CJEU rejects (the other) Brexit case as inadmissible

27 November 2018

Today everyone's focus is on the CJEU hearing taking place in the Wightman case. However, yesterday CJEU published its judgment in another Brexit challenge - Shindler and Ors v Council of the European Union.

Under Article 50 TFEU, read together with Article 218(3), once the UK gave notification of its intention to leave the EU, the Council had to authorise the Commission to commence negotiations on the withdrawal agreement.

Mr Shindler sought to challenge that authorisation by the Council.

His case was made up of several strands, including the suggestion that the Council's decision served to endorse or ratify the UK's notification of intention to withdraw. Mr Shindler argued that the notification was flawed as it was not founded upon the votes of UK citizens who had lived outside the UK for more than 15 years and who were therefore ineligible to vote in the referendum in 2016, or to elect the MPs who passed the European Union (Notification of Withdrawal) Act 2017 which authorised the government to provide the notification.

As such, the notification was not based upon the UK's constitutional requirements, as stipulated by Article 50(1) and the whole withdrawal procedure was void.

In this respect at least, the case sought to bring together the subject of the failed challenge in R (Webster) v Secretary of State for Leaving the EU, together with the arguments around the right to vote in the referendum that Mr Shindler had deployed before the domestic courts back in 2016. CJEU referred to both in passing.

Unsurprisingly, CJEU did not find the applicants' suggestion convincing and sought to tread lightly around whether or not the UK had complied with its constitutional requirements. It pointed out that it was not for the EU institutions to look behind the notification to assess whether the UK had complied with its own constitutional arrangements and that the decision to open negotiations did not in any way 'endorse' or 'ratify' the UK's notification - the UK gave its notification and the decision was generated by operation of law.

It also held that the Council's decision did not have any legal effect on the applicants - they would remain EU citizens for the duration of the negotiation period and it would be the operation of Article 50, rather than the decision, that would bring that citizenship, and the rights that go with it, to an end. What the applicants' rights might be in the future would depend on the deal negotiated, not the decision to open negotiations.

It was this latter point that effectively killed the case. CJEU ruled that, as the decision did not produce any binding legal effects capable of affecting the interests of the applicants, it could not be the subject of an action for annulment. In addition, as they were not directly affected by the decision, the applicants did not have standing to bring proceedings against it.

The application was therefore dismissed in its entirety and joins the numerous other failed legal challenges that litter the road towards Brexit. However, we do still have the Wightman decision to look forward to, as well as the Supreme Court's determination on whether the Scottish Parliament's Continuity Bill is within its legislative competence.

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