Brexit has sparked a raft of cases in the UK and EU courts, leading to ‘some significant developments’, according to a House of Commons briefing paper.
The paper, ‘Brexit questions in national and EU courts’, published last week, reports European Court of Justice (CJEU) president, Professor Koen Lenaerts’ belief that many more cases will be brought before and after Brexit, ‘beyond the wildest imagination’ of lawyers and ‘from the most unexpected angle’ imaginable. However, it points out that most challenges have not progressed to or been successful at the CJEU.
The best-known Brexit case is probably the Gina Miller and Deir Tozetti Dos Santos case, which resulted in a ruling that an Act of Parliament was required to trigger the Art 50 process for leaving the EU. Other cases have failed because they were judged to be more political than legal (Elizabeth Webster’s claim that the government did not properly consult before triggering Art 50) or concerned hypothetical future situations rather than a real dispute (a claim by five UK nationals living in the Netherlands arguing that their EU citizenship should not be revoked post-Brexit).
One CJEU case last year however, concerning the Dutch financial services company Achmea, could have implications for the UK’s post-Brexit trade deal with the EU. The CJEU said that all courts and tribunals applying EU law must be able to request a CJEU ruling.
This case suggests that the EU will only accept its own court as the mechanism for resolving any post-Brexit disputes with Britain. Ending CJEU jurisdiction in Britain has been a key sticking point for Brexiteer MPs and was one of Prime Minister Theresa May’s red lines during negotiations.
