The principal Brexit focus remains on the Irish border’s role. But there is another equally difficult obstacle, which is the part to be played by the Court of Justice of the European Union (CJEU).
There are two aspects. One is the Court’s continuing role in UK affairs post-Brexit, which is still not clear. Although the government says that we will be outside the CJEU’s jurisdiction, government policy as declared in Theresa May’s most recent speech was ambivalent in areas such as continuing membership of European agencies or the law relating to data protection.
But it is the other aspect which was thrown up last week, which is the CJEU’s role in deciding Brexit issues, raised by the President of the CJEU, Koen Lenaerts, when he delivered his annual report on the court’s work.
In the question and answer session, he could not resist reminding the audience that the same politician who is currently leading the UK’s effort to wriggle free from the CJEU’s jurisdiction – one David Davis - had brought a case just before the referendum to over-rule an act of Parliament properly voted on in Westminster, the Data Retention and Investigatory Powers Act 2014 (‘DRIPA’) Joined Cases C‑203/15 and C‑698/15.
More seriously, he mentioned not only that the UK courts are still sending plenty of references to the CJEU before Brexit to settle questions of EU law in the UK, but that cases about Brexit are beginning to crop up on the court’s roster.
The cases divide into two categories (he did not put it this way). There are those which go to the heart of Brexit and the constitutional issues which arise, and those in which Brexit is more incidental and affect particular areas of law.
So Koen Lenaerts said that, although some campaigners have been trying to have Article 50 cases referred to the CJEU, none has so far arrived. But there are at least two ‘heart of Brexit’ cases which have arrived or will arrive.
I wrote about one of them earlier this year, from the Netherlands about the loss by British citizens of their EU rights after Brexit. It is currently being held off pending a local appeal.
Secondly, the General Court of the CJEU has a case before it led by the 96 year old war veteran, Harry Shindler, seeking to annul the EU’s Brexit negotiating guidelines, on grounds including that the EU Council:
‘has allowed a withdrawal procedure to be initiated without expatriate European citizens having had the opportunity to set out their views on the possible loss of their European citizenship. The right to be heard and to express one’s opinion by way of a vote in the event of an election with a European scope has thus not been respected. The contested decision therefore validates the existence of a category of second-class citizens, deprived of their right to vote because they have exercised their freedom of movement, and that decision has consequently failed to comply with the principle of equal treatment of citizens. The applicants take the view that discrimination between citizens on the basis of their residence has occurred.’
Regarding the more ‘incidental’ cases, Koen Lenaerts mentioned one where a Spanish court has asked whether an EU trademark can be enforced after March 2019 if it is based on British trademark protection.
I wrote earlier this year about the case from Ireland as to whether someone can be extradited under the European Arrest Warrant to the UK if the prison sentence would be completed after Brexit.
And there is another Irish case on the court list, too. In C-661/17, which is an asylum case involving the transfer of asylum seekers from Ireland to the UK, the asylum seekers have invoked Brexit, and the Irish court has asked in a preliminary reference for a ruling, among other things, on whether ‘a national decision-maker, in considering any issues arising in relation to the discretion under art. 17 [of the Dublin III Regulation] and/or any issues of protection of fundamental rights in the UK, required to disregard circumstances as they stand at the time of such consideration in relation to the proposed withdrawal of the UK from the EU?’
The Irish court also asked for an expedited ruling, including on a Brexit ground, but the CJEU – in the only part of the case which has so far come up for decision - ruled: ‘The fact that the United Kingdom may in the near future cease to be part of the Union and, as the case may be, cease to be bound by the provisions of that regulation, does not in itself create an urgent situation for the parties in the main proceedings.
There will be more cases of both categories, leading to a potential for fundamental court-led crises ahead.