How to protect the rights of UK citizens in the EU27 after Brexit? Analysis of the Shindler judgment

Professor Steve Peers, University of Essex*

Introduction

The EU General Court today gave its judgment in the case of Shindler and others, on the legality of the EU Council decision giving the EU Commission a mandate to negotiate the Brexit withdrawal agreement with the UK. In the Court’s view, the case, which was brought by a group of UK citizens living in the other EU Member States, was inadmissible. Although this necessarily meant that the Court did not rule on the merits of the legal challenge, the judgment nevertheless touched on a number of interesting issues regarding the process and consequences of the UK’s withdrawal from the EU.

Today’s judgment could still be appealed to the full Court of Justice, and indeed the applicants’ lawyer has announced an intention to appeal. However, it might be difficult for the Court to give a ruling on the appeal before Brexit day. The judgment also arguably leaves the door open to potential legal challenges against further steps in the Brexit process.

Furthermore, it should be noted that today’s judgment does not have any direct implications for other cases raising Brexit legal issues, which I summarised here, including the Wightman case on whether the UK’s notification of withdrawal from the EU can be unilaterally revoked (on the background to Wightman in the Scottish courts, see here; on the legal arguments on unilaterally revocability, see here). To add to that, a parallel case in the Dutch courts on the legal status of UK citizens in the EU (see discussion here) has been stalled until Brexit day, and the CJEU has ruled already that the UK remains fully part of EU law until that date (as discussed here).

The judgment

While the applicants presumably disagree with the UK’s decision to trigger the Brexit process, the EU General Court only has jurisdiction over acts of the EU institutions or other bodies, not acts of the Member States. The applicants therefore challenged the Council’s response to the UK’s notification of withdrawal from the EU under Article 50 TEU. (Note that the act being challenged in this case – namely the Council’s decision to give the Commission a negotiating mandate for the withdrawal agreement – is different from the European Council’s adoption of negotiating guidelines for the agreement, although a legal challenge brought against those guidelines would surely have had the same result as this case). The Commission planned to intervene in support of the Council, although ultimately its application to do so was irrelevant. No Member States intervened.

When individuals (natural or legal persons) seek the annulment of acts adopted by the EU institutions directly before the EU General Court, they are subject to restrictive conditions on standing set out in Article 263 TFEU. In order to sue, they must either be: a) addressees of the act; b) directly and individually concerned by it; or c) directly concerned by it, if it is a regulatory act which does not entail implementing measures.

 

Shindler and others are not addressees of the Council’s negotiating mandate, and they were likely covered by point c), since the EU courts have ruled (see the Inuit judgment, and the discussion here) that point c) applies whenever the EU act is not adopted by an EU legislative process, which the negotiating mandate was not. However, the General Court never really got to that stage of legal analysis, since it ruled that they lacked standing anyway, because they did not meet the requirement that ‘the binding legal effects of the measure being challenged must be capable of affecting the interests of the applicant, by bringing about a distinct change in his legal position’.

In the Court’s view, the decision on the negotiating mandate was binding. However, while, following previous CJEU case law (the cases referred to were discussed here and here), a negotiation mandate produces legal effects between the EU and Member States, and between EU institutions, it ‘does not directly affect the legal situation of the applicants’.

On that point, the decision on the negotiating mandate was legally distinct from the UK decision to withdraw from the EU (which was not defined by the Court), and from the notification of the UK’s intention to withdraw from the EU sent by the Prime Minister. The latter notification, not the former decision to withdraw, started the two-year time limit set out under Article 50, after which the Treaties cease to apply to the UK in the absence of a withdrawal agreement, unless there is an agreement to extend the period. (Today’s judgment does not address the question at issue in Wightman – ie whether the notification can be revoked).

Nor does the decision on the negotiating mandate ‘alter the legal situation of UK citizens resident in one of the European Union’s other 27 Member States’, as regards either their situation when that decision was adopted or their situation on Brexit day. The negotiating mandate ‘merely constitutes a preparatory act for any final agreement’, which would have to be approved by the Council with the consent of the European Parliament. Annulling it would not change the position of UK citizens, because the notification would still be valid and the two-year time limit would still apply. Although the UK citizens’ status, ‘particularly as regards their status as EU citizens, is likely to be affected’ from Brexit day, whether or not there is a withdrawal agreement, that change would not result from the decision to adopt the negotiating mandate.

The Court then rejected a number of counter-arguments of the applicants against this finding. First, they had argued that the Council’s decision was ‘an implicit act by which the Council accepted the notification of intention to withdraw’. In the Court’s view, although the decision produced effects within the EU and between the EU and Member States, it did not produce legal effects for the applicants: for them it ‘must be considered to be a preparatory act’ without ‘direct legal effects’.

Nor did it implicitly accept the UK’s notification to withdraw, as it was distinct from the decision to withdraw or the notification of that decision. Also, withdrawal from the EU ‘is based on a unilateral decision’ by a Member State ‘pursuant to its own constitutional requirements’. Article 50 refers twice to a decision by a Member State – and then to notifying its intention to withdraw, not to making a ‘request’ to withdraw. Article 50(3) TEU, setting out the two-year deadline and the possibility of a no deal outcome, ‘confirms that the possibility for a Member State to withdraw from the EU is not subject to authorisation from the EU institutions’.

So there is no process of accepting the notification from the EU institutions, in which they check if the UK has met its own constitutional requirements: ‘[s]uch a decision of acceptance by the Council or by any other EU institution is not needed and is not provided for by Article 50 TEU.’ Anyway, the notification was sent to the European Council, not the Council; and the Council’s reference to the Brexit process in its negotiating mandate only observed the legal situation, not created it.

Next, the applicants had argued that the Council's negotiating mandate ‘does not include an objective to ensure that UK citizens who obtained the status of EU citizen before 29 March 2019 maintain that status’, therefore failing to protect them fully or provide for legal certainty. The Court rejected this argument for several reasons: the negotiating mandate was (unsurprisingly) simply a negotiating mandate, not a final position; there would not necessarily be an agreement; the position of UK citizens will not be determined unilaterally by the EU but also depend on the UK’s position; and the final agreement will need consent of the European Parliament. So the mandate, being addressed to the Commission, did not itself determine the position of UK citizens after Brexit.

Also, the absence of any provision in the mandate on EU citizenship and voting rights ‘does not directly affect [UK citizens’] legal situation’, because the negotiating mandate ‘is merely a preparatory act which cannot prejudge the content of any final agreement, particularly as regards the personal scope of any provisions on the protection of the status and rights of UK citizens in the EU 27’. Furthermore, the mandate could not establish the rights of UK citizens in the EU27 in the absence of an agreement, and so an argument based on the Council’s failure to address this scenario was unfounded.

Thirdly, the applicants had argued that ‘the Council should have refused or stayed the opening of negotiations’, because the withdrawal process is ‘void’ due to ‘the absence of definite constitutional authorisation based on the votes of all UK citizens, who are also EU citizens’. More precisely, the applicants object to being denied the vote in the 2016 referendum and the 2017 UK general election, because UK citizens who have been living outside the UK for more than 15 years lose the right to vote. Also, they argued that the European Union (Notification of Withdrawal) Act 2017 does not require the UK to notify its withdrawal but only authorises the Prime Minister to do so, and that:

legal proceedings are currently underway before a UK court, that the Council and the United Kingdom should have sought judicial review of the constitutionality of the notification of the intention to withdraw pursuant to the principle of sincere cooperation provided for in Article 4(3) TEU, and that the Council also should have requested the opinion of the Court as to the compatibility with the Treaties of depriving expatriate UK citizens of the right to vote and their indirect representation by MPs, pursuant to Article 218(11) TFEU. They add that to dismiss the present action for inadmissibility would infringe the principle of democracy, in so far as removing EU citizenship in March 2019 will occur in circumstances that are illegal, where EU citizens have been deprived of the right to vote.

In the Court's view, these are substantive arguments that do not impact the admissibility of the case, because they do not impact the Court’s finding that the negotiating mandate ‘does not directly affect the legal situation of the applicants’. So ‘[e]ven if the Council should have refused to open the negotiations or should have verified that the decision by which the United Kingdom decided to leave the European Union had been taken in accordance with its own constitutional requirements’, the negotiating mandate only authorised the start of talks and set the negotiation objectives of the EU. Equally, even if the Council ‘was wrong’ not to check the compatibility of the withdrawal agreement with EU law (ie, the process in Article 218(11) TFEU which the applicants refer to), which the Court noted is optional, or ‘infringed the principle of sincere cooperation’, that would not alter the admissibility criteria either.

As for the alleged infringement of the principle of democracy, this did not change the criteria for admissibility either, as it would in effect amount to the tail wagging the dog: ‘tantamount to inferring the admissibility of an action for annulment under Article 263 TFEU from the possible unlawfulness of the contested decision’. Just because the EU institution allegedly seriously breached EU law or had a major adverse impact on the applicant, it does not follow that the challenge is admissible. Anyway, again the negotiating mandate ‘does not, of itself, restrict the applicants’ rights’.

Next, the Court rejected the argument that this was the applicants' only legal remedy before they lose EU citizenship. But the Court repeated that the Council decision was not the cause of the UK leaving the EU, and added that protection of EU law rights can also be secured by national courts. In this case, the Court noted that the voting franchise ‘and, indeed, the notification of intention to withdraw, were open to challenge before the UK courts, which may, where appropriate, refer questions to the Court for a preliminary ruling on the interpretation of the Treaties, pursuant to Article 267 TFEU.’ More precisely, the Court observed that the High Court had already rejected a case brought by Mr Shindler concerning the franchise, as well as the Webster challenge to ‘the alleged lack of a decision to withdraw taken in accordance with the United Kingdom’s constitutional requirements’.

Finally, the applicants argued that no such route through the UK courts would be possible after Brexit day, as the UK might not consider itself bound by an EU court decision. However, the Court ruled that it could not alter the rules on admissibility of legal actions in light of this scenario.

Comments

It’s striking that the General Court has chosen a less obvious route to find that this case is inadmissible – the lack of direct impact on the applicants – rather than the more obvious route of finding that there is no ‘direct concern’, or that the negotiating mandate calls for further implementing measures (ie negotiations with the UK). The implication of the Court’s judgment is that that the withdrawal agreement – if it is ratified in some form – would have a direct impact on the applicants, and that they could try afresh to challenge it then. But then they would have to face the hurdle of showing direct concern and the absence of implementing measures – which could be a difficult hurdle to surmount given that the withdrawal agreement will be implemented by national bodies in the EU27 and the UK.

As for alternative routes to challenge the Council’s negotiating mandate, it is hard to see exactly what could be attacked via the national courts (which can ask the CJEU whether an EU act is invalid: direct challenges like today’s case are only one means of challenging the legality of EU acts). Again, though, the Council’s decision to conclude a final withdrawal agreement could be attacked via the EU27 national courts, even if a direct action would face different standing challenges; recent case law of the CJEU (see discussion here) has confirmed that the EU’s conclusion of international treaties can indeed be challenged by this route.

Another route to challenging the validity of EU acts is by claiming damages liability of the EU, which is not subject to the same standing rules. According to the CJEU case law, the EU incurs damages liability when it acts unlawfully, its unlawful acts cause damage to individuals, and it commits a sufficient serious breach of a legal rule conferring rights on individuals. But it’s hard to see how damages liability could be incurred by the negotiating mandate, since the logic of the Shindler ruling is that the mandate could not cause damage to individuals, as it did not directly affect their legal position. On the other hand, an argument about damages liability could be made if there is a withdrawal agreement, although note that the threshold to succeed in a damages claim is quite high: see, for instance, the Ledra Advertising case on losses of Cypriot bank depositors, discussed here.

In the case of no withdrawal agreement (or replacement treaty ring-fencing rights), there would be nothing which could be the subject of legal challenge at EU level, although UK citizens could still try to argue in the national courts of the remaining Member States that there is a principle of acquired rights which EU law recognises (see again the Dutch case discussed here, which is on hold), or at least that EU legislation on the position of non-EU citizens (which has partly harmonised national law) applies to them. Equally there would be no EU act to claim resulted in damages, although UK citizens (and others) might try to argue that the EU’s conduct of the negotiations could be the subject of a damages claim.

Moving to the core of the Court’s reasoning, it is a persuasive argument that the decision to establish a negotiating mandate did not directly impact upon the applicants’ rights. The process was indeed triggered by the UK, with the negotiating mandate at most taking note of that decision; and any later impact on individual rights will flow from the final agreement (if ratified) or the absence of a deal.  While the Court seemed to assume that UK citizens lose EU citizenship as a result of Brexit, it did not expressly say as much.

The Court was also right to stress that withdrawal is the responsibility of the UK in accordance with its own constitutional requirements, meaning that the Council could not in some sense review whether the UK had met those requirements when it submitted its notification to withdraw. It’s particularly unclear how exactly the Council should have sought judicial review of the UK’s notification, or how the Article 218 process of assessing draft international treaties for their compatibility with EU law could extend to an examination of the franchise in the UK referendum and general elections. The general assertion that the circumstances are ‘illegal’ due to the limited franchise in the referendum rather overlooked the legal process in the UK, which had already (as the Court noted) rejected a claim challenging the legality of the franchise restrictions. Having said that, the Court later indicated that national court disputes over the Article 50 process in the UK could be sent to the CJEU – although it did not as such suggest that this would, after all, entail a review of those national constitutional requirements in light of EU law.

Similarly the Court rightly rejected the arguments about the negotiation mandate being insufficient because it depends upon the final agreement (if ratified) what the rights of individuals are, and applies its usual case law refusing to rethink the strict rules on standing in light of the applicants’ particular circumstances. 

It’s useful to examine briefly what the Court would have ruled on if it had examined the merits of the claim, which are summarised here. The first argument was that withdrawal from the Euratom treaty had to be a separate legal process; I have a different view, as set out here. (Note that winning on this point would not have helped with the key legal objective of preserving UK citizens’ rights).

The second argument was that the negotiating mandate wrongly claims that the EU alone was competent to conclude the withdrawal agreement, and that it should be jointly ratified with EU Member States. Leaving aside the merits of this argument, with respect it is hard to see how it helps the applicants if they had won on this point, because it would have seriously increased the risk of a no deal scenario – which would, as I recently pointed out, leave UK citizens in the EU27 in particular much worse off than under the withdrawal agreement.

The third and fifth arguments have been addressed in an indirect way by the judgment, despite the finding of inadmissibility: the limited franchise is a matter to be addressed in accordance with the UK’s own constitutional requirements, and the lack of certainty regarding the final outcome is simply unavoidable at the point when the Council adopts a negotiating mandate. Finally, the fourth argument – concerning the lack of a vote for UK citizens living in overseas countries and territories – is another form of franchise argument, which again should be left to the UK’s constitutional requirements to address.

Finally, on the overall context of the case: while in my view, protection of the rights of UK citizens in the EU27 (and the parallel rights of the EU27 in the UK) is absolutely fundamental, the focus should be on securing those rights in future – either by reversing Brexit, or failing that by at least avoiding a no deal outcome – rather than re-litigating the franchise of the referendum, by trying to induce the EU courts to rule on an issue (national constitutional requirements) which should be wholly outside their remit.  In the event of a no deal outcome, despite the apparent indifference of the Commission to the fate of UK citizens in the EU27, the focus has to be on securing a ring-fenced treaty on securing the rights of citizens on both sides; failing that, EU-wide legislation on the acquired rights of UK citizens (hopefully matching parallel action by the UK for EU27 citizens); and failing that, litigation to argue that the EU and/or its Member States have an obligation to preserve their rights as much as possible.

*Supported by an ESRC Priority Brexit Grant on 'Brexit and UK and EU Immigration Policy'

Barnard & Peers: chapter 10, chapter 27

Photo credit: European Sanctions Blog

The Brexit Withdrawal Agreement: Overview and First Observations

Professor Steve Peers, University of Essex

Introduction

The recently agreed Brexit withdrawal agreement may turn out to be dead on arrival, or at some point not long after. Nevertheless, if the agreement is ratified, it is the basis on which the UK would leave the EU – unless the two sides agree to amendments to the text.

Since the agreement is both complex and legalistic, but also the subject of intense political debate, there’s a need for a summary and explanation of the text for non-lawyers. This blog post aims to do that by outlining the structure of the agreement and the main content of each part of it in turn. It does not aim to be exhaustive, but only to give a broad indication of what the agreement entails.

Throughout the blog post, I’ve scattered the answers to ‘key questions’ which have been raised about what the withdrawal agreement does. Let’s start with this one:

Key question: Does the withdrawal agreement cover the long-term relationship between the UK and EU after Brexit?

No. The withdrawal agreement governs only the details of leaving the EU, not the long-term relationship between the UK and EU. On that issue, alongside the text of the agreement, there was also initially a draft outline of the political declaration on the future UK/EU relationship. This is the basis for negotiations that would take place after Brexit day. This declaration has since been finalised. Finally, there’s also a joint report on the state of negotiations to date.

This is (hopefully) the first in a series of several blog posts on the withdrawal agreement. I aim to come back to three specific issues in more detail: the ‘backstop’ relating to the Irish border; the role of the CJEU; and the future relationship. (Update, Dec 8: the blog post on the future relationship is here).

Also, for more detailed discussion on parts of the withdrawal agreement, I’ll refer to some blog posts on the March draft of the agreement – although, as I point out below, that draft has been amended on a number of issues.

Key question: What if the withdrawal agreement is not ratified?

Unless the two sides agree to amend it and then ratify the amended text, in principle the alternatives are the UK leaving the EU without any withdrawal agreement, or staying in the European Union. However, it remains to be seen if remaining by revoking the Article 50 notice of withdrawing is even legally possible: the Wightman case, now pending before the CJEU, will clarify this issue. A general election might be held, but that will not in itself change the options available. The Brexit date could be delayed, but both the UK government and the EU27 Member States (acting unanimously) would have to agree to this.

The EU Commission has issued preparedness notices setting out its view on what would happen if the UK leaves the EU without a withdrawal agreement. The UK government has also issued its own no deal notices. Last week, the Commission published a communication explaining what it would do in the event of no deal. In particular, it would suggest unilateral EU measures to keep basic aviation services to the UK (less than current aviation service). It would not propose issuing extra lorry permits, so access to the EU by UK commercial drivers would be highly curtailed. There would be no ‘adequacy decision’ on flows of personal data from the UK to the EU, so digital services would be somewhat more complicated.

It also proposed to waive visa requirements for short-term visits by UK citizens to the EU (for 90/180 days). This will not address residence for longer periods, which will be subject to EU and national laws on non-EU citizens, which are more restrictive than EU free movement rules. (For more details of the law applicable to UK citizens visiting or staying in the EU after Brexit, see my discussion here).

Structure of the withdrawal agreement

Part One of the withdrawal agreement (Articles 1-8) sets out the “Common Provisions”. These deal with basic issues like definitions and territorial scope.

Part Two of the withdrawal agreement (Articles 9-39) deals with citizens’ rights, for those EU27 citizens in the UK, and UK citizens in the EU27, before the end of the transition period.

Part Three of the agreement sets out “separation provisions” (Articles 40-125), ie the exact details of phasing out the application of EU law in the UK at the end of the transition period.

Next, Part Four sets out the rules on the transition period (Articles 126-132), during which substantive EU law still applies to the UK for two to four years after Brexit day.

Part Five concerns the financial settlement (Articles 133-157).

Part Six sets out “Institutional and Final Provisions” (Articles 158-185). This includes rules on CJEU jurisdiction over EU27 citizens, dispute settlement, making further decisions to implement the agreement and rules on entry into force and dates of application.

In addition there are three Protocols to the agreement (these have the same legal force as the main treaty), on Irish border issues,  UK bases in Cyprus, and Gibraltar.

Part One: Common Provisions

The main legal issue in Part one is the legal effect of EU law for the UK. The agreement must have the same legal effect for the UK as EU law does for EU Member States – including the principles of direct effect (meaning that the agreement as such can be enforced in national courts) and implicitly supremacy (meaning that national law which breaches the agreement must be disapplied by national courts). The UK must also pass an Act of Parliament to give effect to the Agreement; this is above and beyond the planned ‘meaningful vote’ on the agreement in Parliament.

All references to EU law require it to be interpreted in accordance with the normal rules of EU law. As for case law of the CJEU, references to EU law must be ‘interpreted in conformity with’ CJEU case law delivered before the end of the transition period. However, the rule is different for CJEU case law after the end of the transition period: in that case, the UK courts and authorities are only required to have ‘due regard’ for the case law. Note that none of this gives jurisdiction to the CJEU as such as regards the UK (although other parts of the Treaty give the Court some jurisdiction).

References to EU law include that law as amended until the end of the transition period, while references to Member States include the UK except when they refer to having voting or representation rights on EU bodies etc.

Part Two: Citizens’ rights

This part will mostly not apply until after the end of the transition period, since free movement of people will continue during that period. In principle, it provides that EU27 citizens in the UK before the end of that period (and UK citizens who are in the EU27 before the end of that period) will retain the same rights as those who arrived before Brexit day. To that end, it requires the two sides to keep applying EU free movement legislation to the people concerned, including legislation on social security coordination and the recognition of qualifications.

Some aspects of their legal status will change, however: the UK or EU27 Member States may require them to apply to prove their right to stay on the territory. The UK in particular plans to implement this, by means of a ‘settled status’ scheme. The risk is that some people will not have the documentation to prove their right to stay. Some categories of people currently covered by EU law (such as UK citizens returning to the UK with non-EU family members, or UK children in the sole care of one non-EU parent) will not be covered by the withdrawal agreement, so their position will be up to UK law. Similarly a number of EU27 citizens who would not qualify for status because they do not meet the ‘comprehensive sickness insurance’ requirement will be covered by a unilateral waiver of this rule by the UK, not the withdrawal agreement.

Also, the rules on family reunion in EU free movement law (which are more favourable than those under national law or EU law on non-EU families) will only apply where the family relationship existed before the end of the transition period, or the family member was legally resident in the same State then. If the citizens commit a criminal offence after the end of the transition period, national rules on expulsions will apply – and they may be more stringent than EU free movement rules on this issue.

The CJEU will have jurisdiction to rule on how the rules apply to EU27 citizens in the UK, on the basis of requests from UK courts, for eight years after the transitional period ends. There will also be an independent monitoring body in the UK with power to bring court cases on their behalf.

For further details, see my annotation of a previous version of the citizens’ rights Part of the treaty, which is only a little different from the final version.

Key question: Does the withdrawal agreement end free movement of people?

Yes, free movement ends at the end of the transition period, unless the UK and EU decide to sign a separate treaty as part of the future relationship extending free movement in the future. Currently the UK government opposes this idea. The ‘backstop’ relating to Northern Ireland, if it ends up applying, does not include free movement of people, but only the continuation of the UK/Ireland common travel area, which is more limited.

The withdrawal agreement also ends free movement for UK citizens already in the EU27, unless (again) a separate treaty as part of the future relationship addresses this issue.

Part Three: Separation provisions

This part tells out exactly how EU law ceases to apply at the end of the transition period, for a list of different issues. It was mostly agreed in March, with a few more Articles agreed in June, and the rest agreed since. The biggest difficulties were over geographical indications (ie, protection for those who call their product ‘Parma ham’) and what happens to cases pending before the CJEU on Brexit day.

Key question: Is the UK bound to EU law on geographical indications forever?

No, but it would be guaranteeing the continued protection of geographical indications for products which were protected at the end of the transition period.

More precisely, this part sets out rules for ending the application of EU law as regards thirteen issues: goods placed on the market; ongoing customs procedures; ongoing VAT and excise procedures; intellectual property protection; police and criminal law cooperation; cross-border civil litigation; personal data; public procurement; Euratom; judicial and administrative procedures; administrative cooperation; privileges and immunities; and other issues, such as the European Schools.

Key question: Does the CJEU have jurisdiction in the UK indefinitely?

No. Some have misread Article 89 of the withdrawal agreement, which refers to CJEU jurisdiction as regards cases coming from the UK, to mean that the UK will be covered by the Court’s jurisdiction forever. In fact, Article 89 simply confirms that the Court will have jurisdiction for cases sent from UK courts before the end of the transition period.

After that point, UK courts can send the CJEU cases only in limited contexts: for eight years after the transition period ends as regards EU27 citizens in the UK, or the protocols on Northern Ireland (in part) and Cyprus. Also, the Court has jurisdiction after this point to decide on how to interpret EU law if a dispute about the withdrawal agreement goes to arbitration (see Part Six).

Furthermore, the Commission can sue the UK in the CJEU for failure to implement EU law correctly for four years after the end of the transition period (though this can only concern alleged breaches which occurred before the end of the transition period as an EU Member State, or under the transition period Part of the agreement). Finally, the Commission can sue the UK to enforce State aid and competition decisions which were based on proceedings which started before the end of the transition period, but concluded afterward. 

It is possible that the future relationship will provide for continued EU/UK cooperation on some of these issues, in which case some of these separation clauses either will not come into practical effect at all, or will only apply in part. For instance, the EU and UK might end up agreeing in a new security treaty on another form of fast-track extradition instead of the European Arrest Warrant (EAW), and may therefore choose to agree different rules on transition from the EAW system to that new fast-track system.

Part Four: transition period 

This is a short part of the withdrawal agreement, yet it has the biggest effect: it keeps substantive EU law in place in the UK until the end of 2020.  It was agreed by March, except the negotiators have now added a new Article allowing for a possible extension.

The key elements of the transition period are that EU law (including new EU law) applies to the UK, except in areas covered by UK opt-outs (such as the single currency and justice and home affairs law; in the latter case, the UK retains part of its power to opt-in to new proposals on a case-by-case basis). There are special rules on external relations: for instance, the EU will notify non-EU countries that the UK should still be regarded as covered by EU free trade agreements, or other types of EU treaties between the EU and non-EU countries (the non-EU countries aren’t obliged to agree to this). The current rules on the allocation of fisheries catches can’t be changed to benefit either the EU or UK fishing fleets.

However, the UK will not be represented on any EU institutions or bodies – including on the CJEU, which will continue to have its usual jurisdiction regarding the UK during the transition period. The UK will only be consulted on new EU measures as a special exception. In one area – foreign and defence policy – the UK can refuse to apply new EU measures if it has fundamental objections to them, and the withdrawal agreement foresees an early treaty between the EU and UK that will replace the transition period rules.

For a detailed annotation of the transition period clauses – except for the extension clause which has now been added – see my earlier blog post.

Key question: Which EU laws does the transition period cover?

I’m often asked if the transition period covers a particular EU law like driving licences or aspects of the free movement of people, because readers can’t find a specific reference to that law in the withdrawal agreement. The simple answer is that the transition period covers all laws applying to the UK except a handful of exclusions, so the drafters didn’t bother with a list of those EU laws which are covered by it.

The EU laws which are not covered by the transition period are those about the European citizens’ initiative (on that process, see the case law discussed here) and also voting and standing for office in the European Parliament and local government. The UK (or its devolved legislatures) can, if it chooses, unilaterally continue to let EU27 citizens vote in local elections, and EU27 countries can choose to do the same for UK citizens. Also, as noted above, EU foreign and defence policy might not fully apply to the UK for the whole of the transition period.

This brings us to the new clause on extension of the transition period. It’s possible for the Joint Committee set up by the withdrawal agreement – which works by the mutual consent of the EU and UK – to decide by July 2020 if the transition period will be extended, for a period of up to a date to be decided (reportedly that date could be the end of 2022).

In that case, the transition period rules continue to apply to the UK for that extended period, except there would have to be an ad hoc negotiation on how much the UK pays into the EU budget during the extended period.  There are also special rules on agricultural support.

Key question: Can the UK be forced to stay in the transition period indefinitely?

No – and no. First of all, any extension of the transition period has to be agreed jointly, as noted already. Secondly, any extension won’t be indefinite, since the negotiators will add a final possible date for extension when they agree the final text of the withdrawal agreement.

On the other hand, the UK might theoretically end up in the backstop relating to Northern Ireland indefinitely. Although the withdrawal agreement says that this arrangement must be temporary, unlike the transition period there is no final date to end it and the UK cannot unilaterally end it at a certain date. However, the backstop is more limited in scope than the transition period, as it concerns only some EU laws (mainly on external trade, customs, and goods regulation, plus some limited application of EU laws on labour, the environment, state aids and competition in its Annexes). In particular, the backstop does not concern the free movement of people or services, or contribution to the EU budget.

Part Five: financial settlement 

This part incorporates the earlier agreement that the UK takes part in the EU’s spending until the end of the current budget cycle (end 2020), which matches the end of the transition period (unless that period is extended). As noted above, though, if the transition period is extended, the UK and EU will negotiate a separate EU contribution to the EU budget. It also includes UK payments to the budget incurred because the EU often makes financial commitments in one year and then pays them out in later years (the system known as reste à liquider). Furthermore, it includes continued payments to ‘off-budget’ EU spending such as commitments to developing countries, until the current versions of those programmes expire. For a detailed discussion of the finances of the deal, see reports from the OBR, the National Audit Office and the Institute for Government.

Key question: Has the UK agreed to pay £39 billion in return for nothing?

No. First of all, this begs the question: the EU regards the financial settlement as money which is payable in any event regardless of any future relationship, and took the view that the future relationship could not be formally negotiated before Brexit day anyway. Even on its own terms, the argument that ‘£39 billion is paid for nothing’ is wrong, since about half of of the money relates to the UK still applying substantive EU law during the transition period (see the OBR report), during which the UK still has its current access to EU goods and services markets (and vice versa). Anyway, a free trade deal could not have been negotiated in the time available, even if that had been legally possible (again: the EU says it was not).

Part Six: Institutional and Final Provisions

First of all, as noted above (in Part Two), the CJEU will have jurisdiction to rule on how the rules on citizens’ acquired rights apply to EU27 citizens in the UK, on the basis of requests from UK courts, for eight years after the transitional period ends. There will also be an independent monitoring body in the UK with power to bring court cases on their behalf. The two sides might agree to wind up the monitoring body at the end of the same time period.

Secondly, the CJEU will have jurisdiction, after the end of the transitional period, over the references to EU law in the financial settlement part of the agreement, in references from national courts or as regards Commission infringement actions brought against the UK.

Next, there’s a Joint Committee set up to oversee and implement the agreement. It will meet at least once a year, and there are a number of sub-committees dealing with specific issues like Northern Ireland and citizens’ rights. It can take certain decisions to add to the agreement – such as an extension of the transition period – but for all these decisions the EU and UK must both agree.

There are detailed rules on dispute settlement, providing for arguments about the agreement to go to a panel of arbitrators. However, if the arbitrators have to decide an issue of EU law when settling the dispute, they will have to ask the CJEU to give a ruling. This is unavoidable, since CJEU case law insists that the EU and its Member States cannot be bound by an interpretation of EU law other than the CJEU’s (see, for instance, CJEU Opinion 1/92).

The Northern Ireland backstop rules out the arbitration process (including the CJEU) from much of the ‘level playing field’ rules on labour law, environmental law, tax, and competition and state aids law (see below). However, the CJEU has jurisdiction over part of the backstop, as well as the Protocol on bases in Cyprus.

Key question: Does the CJEU have jurisdiction over the entire agreement?

No. The Court has its usual jurisdiction under the transition period, and following that specific jurisdiction over EU27 citizens’ rights and EU law referred to in the financial settlement, as well as the protocols on Northern Ireland (in part) and bases in Cyprus. But the arbitrators can only refer disputes over EU law to it, not disputes over the entire agreement – although a lot of the agreement does refer to EU law. Also, some key points in the backstop are outside the arbitrators’ or the CJEU’s jurisdiction.

Note that this part of the agreement differs a lot from the dispute settlement clauses as the Commission proposed them in March (see discussion here) – which included powers (tilted toward the EU) for both sides to impose sanctions on each other. The final version looks a lot more like traditional international dispute settlement, and is presumably a concession by the EU to the UK.

Finally, the last provisions of the main withdrawal agreement set out ‘boilerplate’ rules: confirming that the three Protocols and nine Annexes are binding; setting out the authentic languages of the text and the depositary; and setting the date of entry in force (30 March 2019). The withdrawal agreement applies from that date, except the parts on citizens’ rights, separation provisions, dispute settlement and the three Protocols mostly apply from the end of the transition period (with specified exceptions which apply immediately). There’s also a commitment to negotiate on the future relationship, referring to the separate joint declaration on that issue, ‘with a view to’ agreeing those texts by the end of the transition period ‘to the extent possible’.

Protocol on Irish border issues

The Northern Ireland Protocol starts with three new Articles compared to the March draft, on UK territorial integrity and emphasising that the Protocol is meant to be temporary. Also there’s a link back to the possible extension of the transition period mentioned above (Part Four). A new review clause was added, but both sides would have to agree to disapply the protocol partly or wholly.

As for the substance of the Protocol, it refers to equality rights and the common travel area between the UK and Ireland, as already agreed (these issues were never controversial).

Key question: Does the common travel area continue the free movement of people between the UK and EU?

No. The absence of border checks makes it impossible to refuse entry to people at the border with Ireland, but that does not mean any EU27 citizens crossing that border (besides Irish citizens) have the right to reside or work in the UK (and vice versa for people crossing into Ireland, besides UK and EU citizens). There is UK legislation on liability for employers, landlords et al who hire or do business with people who are not authorised to work or reside that will be relevant here.

Then there’s the UK-wide customs union backstop, part of which is specific to Northern Ireland. There are a number of elements of this. This part of the Protocol links to Annexes on: a) trade in goods between EU/UK/non-EU states; b) customs cooperation; and c) a ‘level playing field’, which means some degree of continued harmonisation of law relating to tax, the environment, labour law, state aid, competition, and public companies/monopolies.

However, this falls short of the obligations of EU Member States; there are limited obligations to keep up with new EU legislation and CJEU case law; and as noted above (Part Six), the arbitration rules (including CJEU jurisdiction) mostly do not apply to this ‘level playing field’. There’s a lot of EU law that wouldn’t apply to the UK – most notably the free movement of persons, services and capital, and contributions to the EU budget. So while the backstop would still commit the UK to a chunk of EU law on trade in goods, and in a limited way to some law in the ‘level playing field’ areas, the continued application of EU law would be much less than under the rules on the transition period.

The Protocol also contains provisions on the UK internal market, as well lists of specific EU laws that apply in Northern Ireland: product regulation, VAT and excise tax, agriculture and the environment, a single electricity market,  and state aids. There’s also a vague reference to other North/South cooperation. Finally, the institutional provisions of the Protocol provide that EU bodies, including the CJEU, have competence to apply or interpret the provisions of the Protocol that are specific to Northern Ireland.

Protocol on UK bases in Cyprus

This Protocol confirms that the bases in Cyprus remain within EU customs territory after Brexit, and EU regulations on goods, including agricultural and fisheries laws, still apply. EU law on excise taxes and VAT also continues to apply. Goods supplied to the staff on the bases are exempt from customs and taxes, and the UK and Cyprus may agree further rules on social security coordination. There are rules on checks at the border of the bases area, and a general obligation to cooperate to prevent fraud. Finally, the EU institutions, including the CJEU, have competence to apply and interpret EU law referred to in the Protocol.

Protocol on Gibraltar

First of all, this Protocol provides for the UK and Spain to cooperate on workers’ rights as regards the Spain/Gibraltar crossing. Next, it retains the status quo on access to aviation, unless the Joint Committee decides differently. It also contains general provisions on cooperation on tax and fraud, environmental protection and fishing, and police cooperation.

Assessment

The desirability of the withdrawal agreement can only be assessed in light of the alternative options available. Whether it’s possible to end the Brexit process at all by revoking the notification under Article 50 remains to be clarified by the CJEU, as noted above. If that’s not possible, Brexit could be averted only by extending the period of negotiations under Article 50 in order to amend the Treaties to permit revocation of the withdrawal notice, but that is a stretch.

Amendment of the text of the withdrawal agreement is technically possible, but the EU has signalled that it would not be willing to consider any significant amendment to the text. Holding a general election obviously appeals to anyone who wants a change of government in any event, but does not change the fundamental issues relating to the withdrawal agreement or the Brexit process as such.

Objecting to the withdrawal agreement because of objections to the separate future relationship declaration makes little sense. The EU always took the view that it would not and could not negotiate the future relationship formally before Brexit day, and there would anyway not have been enough time to negotiate a full future relationship in two years (unless the UK decided to stay in the EEA as an off-the-shelf model, which would still have required some separate issues to be negotiated). Furthermore, since the future relationship declaration is not binding, the nature of that future relationship is still all to play for.

The options as regards the withdrawal agreement are therefore to support it, to overturn the Brexit process (if that turns out to be legally possible), or to leave the EU without a withdrawal agreement, and therefore without a trade agreement. Each of these three options may individually lack a majority in Parliament, but the no deal option – although it probably commands the least support – is the default if one of the two other options does not command a majority. A no deal outcome – damaging UK exports to their largest market, leaving the position of UK citizens in the EU27 and EU citizens in the UK less secure, disrupting the UK security relationship with the EU, significantly limiting flights and commercial lorry transport with the EU, and raising barriers to transfers of data from the EU to the UK – is manifestly not in the UK’s interest, and no responsible politician should support it. The choice is therefore between the withdrawal agreement or reversing the Brexit process (if possible) as a means to avoid this end.

For supporters of Brexit, the withdrawal agreement may be a disappointment, applying substantive EU law to the UK for the transition period and potentially a proportion of EU law to the UK via the backstop after that. From this perspective, it’s unfortunate that the possibility of staying in the EEA – giving the UK a judge on the EFTA Court and consultation rights on EU proposals, limiting the effect of EU law in the UK, and possibly reducing the scope of EU law applicable to the UK at an earlier point – wasn’t explored from the outset as at least a partial substitute for the transition period.

However, given that new Member States have a transition period of several years when they join the EU (as the UK did when it joined the previous EEC) and usually gear up alignment with EU law for several years before joining, it was unrealistic to imagine ending the UK’s application of substantive EU law would happen all in one go. The withdrawal agreement recognises the unavoidable complexity of the process, phasing out membership via different stages while still offering options for a future relationship – subject to the need to avoid checks on the Irish border.

Whichever of these two routes is ultimately chosen – managed withdrawal or reconsidered reversal – it’s important to find a way of avoiding the worst-case scenario of a no deal Brexit: the project of greedy capitalists, seedy jingoists, tweedy fantasists and needy narcissists.

Barnard & Peers: chapter 27

Photo credit: BBC

Scotching Brexit? Background to the Wightman case about reversing the Article 50 notification unilaterally

Alan S. Reid, Senior Lecturer in Law, Sheffield Hallam University. The author welcomes comments on the blog at a.s.reid@shu.ac.uk

As the Brexit clock ticks down, and the diametrically opposed objectives of Theresa May's negotiating imperatives become ever more exposed, the clamour to clarify the processes and procedures surrounding Brexit intensifies.

At the tail end of 2017, a group of seven Scottish politicians, from across the political spectrum and from all three legislatures for Scotland (the Scottish Parliament, the UK Parliament and the European Parliament) commenced an action in the Scottish Court of Session, essentially seeking an answer to the simple question 'Can a member State of the European Union unilaterally revoke their Article 50 TEU notification to leave the EU?' The group is headed by Andy Wightman MSP, and the other pursuers are Ross Greer MSP, Alyn Smith MEP, David Martin MEP, Catherine Stihler MEP and Joanna Cherry QC MP. English MPs Tom Brake and Chris Leslie were joined in the case in May 2018.  The case was crowdfunded through the Good Law Project, headed by Jolyon Maugham, who is also a petitioner.

The pursuers are keen to know the answer to this question since they believe that the route to Brexit is not unidirectional and binary. For the pursuers, representing constituents in a nation of the United Kingdom which voted overwhelmingly to remain in the EU referendum, Brexit does not have to result in 'Deal or No Deal'. Rather, there may be a third way: A People's Vote that includes the option to Remain in the European Union.

In order for a Scottish court to make any pronouncement on this legal question, the court would have to send a preliminary reference request to the European Court of Justice under Article 267 of the Treaty on the Functioning of the European Union since Article 50 TEU is a provision of EU law and by definition, only the CJEU can offer a binding interpretation of EU law for the entire EU.

In February 2018, the pursuer's application for judicial review (subject, in Scotland, to the Court of Session Act 1988, s. 27B) was refused by Lord Doherty in the Outer House of the Court of Session, on the basis that the question of the revocability or otherwise of an Article 50 TEU notification was a purely hypothetical and academic one, since both the UK Parliament and Her Majesty's Government had no yearning to resile from the path to Brexit (paras 10-14 of the judgment).  In particular, Lord Doherty opined that the pursuer's action had no reasonable prospect of success (para 8; see s 27B(2)(b) of the Act) since the matter was not a justiciable matter suitable for judicial determination.

The pursuers appealed the decision to refuse the judicial review and accompanying CJEU reference to a bench of three Scottish judges in the Inner House of the Court of Session by way of a reclaiming motion (which is the process whereby a decision of the Outer House of the Court of Session can be appealed). In their judgment, the panel of three judges heavily criticised the terms of the original judicial review pleadings as being overly complicated, unclear and potentially confusing and fell way below the standards expected for a judicial review application. (The clarity and structure expected in a judicial review claim were set out by Lord Hope in Somerville v The Scottish Ministers [2007] UKHL 44, at paras. 39, 46, 52 and 65. See also Lord Rodger's dicta at para. 88) Nevertheless, given the constitutional importance of the question raised, their lordships were minded to forgive such careless drafting and allow the appeal and remit the case to the Outer House for judgment (para 12). In the opinion of their lordships, the case was neither academic nor hypothetical given that the UK Government could be asked to revoke the Article 50 TEU notification at the request of the UK Parliament (para 30). But, even where the case were to proceed, the pursuers would need time to revisit and rephrase their averments (para 34).

Following a much amended set of pleadings, Lord Boyd of Duncansby heard the application for judicial review in June 2018. Lord Boyd refused the application and thus with it any chance of a preliminary reference request being submitted to the European Court of Justice (para 75). His Lordship's opinion hinged on the hypothetical and speculative nature of the claim. At the time of the judgment, the EU (Withdrawal) Act 2018 was still a bill progressing through Parliament and thus a definitive date for UK withdrawal from the European Union had not yet been set out as a matter of UK law. Rather, the date of exit of the UK was only set out as a matter of EU law as per the terms of Article 50(3) TEU, that is the date of entry into force of the withdrawal agreement or two years from the date of Article 50 notification itself.

As is well known, the European Court of Justice does not entertain national courts submitting hypothetical questions concerning EU law (see, for instance, Foglia v Novello). The preliminary ruling procedure is a practical cooperative link (for example, Case C‑470/12 Pohotovost) between the national courts of the member States and the Court of Justice of the EU, designed to help the national courts decide cases in which the interpretation of EU law is integral to the resolution of the dispute before the national court. (In the Scottish context, see the case of Scotch Whisky Association v Lord Advocate, discussed here) Having reviewed the authorities in this matter, Lord Boyd declared that the case was a hypothetical one which did not need to be answered in order for him to give judgment. He also stated that this position was synonymous with the position adopted by the Scottish courts as to hypothetical cases before them (for example, see Macnaughton v Macnaughton Trustees 1954 S.C. 312 as discussed by Lord Boyd at para. 48).

The petitioners, in their case, also objected to the stated position of UK Ministers that outlines that Article 50 TEU is not unilaterally revocable. Indeed, in the earlier seminal constitutional case of Miller,  the question of unilateral revocability of Article 50 TEU was assumed by both parties to be answered in the negative (para 10 of that judgment). Lord Boyd refused to entertain an in-depth discussion as to the legal appropriateness of the stated position of UK Ministers on the revocability of Article 50 TEU on the basis that were he to do so, this would be a usurpation of Parliamentary privilege and contrary to Article 9 of the Bill of Rights 1689 (paras 54-58 of his judgment). 

The pursuers then immediately appealed to the Inner House of the Court of Session, where their reclaiming motion was successful. The judgment of the Inner House was delivered on the 21st of September 2018. The Inner House found for the Reclaimers on a number of grounds. Lord Carloway, the Lord President, dismissed the UK Government's claim that the judicial review action was not competent because the order sought was not practical. On the contrary, Lord Carloway considered that the issue was justiciable precisely because there was such controversy as to the appropriate way forward within the parliamentary process (paras 22-23 of the judgment). More significantly, the court also found that the case was no longer hypothetical since in between the date of the judgment by Lord Boyd and the present case, the EU (Withdrawal) Act 2018 had now passed onto the statute books and certain provisions of that Act had come into force.

In particular, section 13 of the Act – the “meaningful vote” section – provides that the UK Parliament will be faced with a binary choice after a withdrawal agreement has been provisionally agreed between Her Majesty's Government and the European Union: Parliament must either approve the terms of the withdrawal agreement and accompanying text on the future framework for UK-EU relations or not approve. In the event that approval has not been forthcoming, the Government must inform the Parliament of how it intends to proceed within 21 days of the decision not to approve. Further, in the period up to the 21st of January 2019, if the Government again considers that no deal can be agreed then Parliament must be told of how the Government intends to proceed and again after the 21st of January 2019, the Government must inform Parliament of how it intends to proceed.

In all of these scenarios, there is a presupposition that both the Brexit clock inexorably continues to countdown to the 29th of March 2019 and that the choice for the UK Parliament is stark: Deal or No Deal. The Scottish politicians at the heart of this case contended that there is an alternative to this dystopian vision: The UK population can be given a People's Vote on the terms of the deal, including an option to Remain in the EU. However, this option will only be realisable if the UK's automatic exit from the EU on the 29th of March 2019 can be postponed and the only ways to disapply the automatic departure of the UK is by the UK either securing the agreement of the 27 other Member States to extend the Article 50 TEU time period or by unilateral rescission of the Article 50 TEU notification.  If neither of these options can be secured, then clearly, given that it is November 2018, there will be insufficient time to organise the necessary preparations for what would be in effect a second referendum on UK membership of the EU.

In the reclaiming motion, the Scottish judges approved the text of the question that they wished to send to the CJEU (see the Appendix to the judgment). The question is thus:

“Where, in accordance with Article 50 of the TEU, a Member State has notified the European Council of its intention to withdraw from the European Union, does EU law permit that notice to be revoked unilaterally by the notifying Member State; and, if so, subject to what conditions and with what effect relative to the Member State remaining within the EU.”

Given that time is of the utmost essence in this case, the Scottish court expressly requested use of the expedited procedure (see Article 105 of the Rules of Procedure of the CJEU) before the Luxembourg court. At present, the average time taken for the CJEU to deliver a ruling under the Article 267 TFEU procedure is 15.7 months (page 114 of the 2017 Annual Report of the CJEU) . Such a timeframe would, ironically, render the judgment academic since the UK is heading towards Brexit in just over four months.  However, even with the expedited procedure, the Court will in all likelihood take between 3 and 5 months to render a judgment. Even this timeframe is problematic given that, at the time of writing, the UK and the EU have agreed a provisional withdrawal agreement on the 13th of November 2018.

In order for the issue of the revocability of Article 50 TEU to have practical import, UK politicians would need to know the answer to this question before they are asked to perform their constitutional task of participating in a meaningful vote on the terms of the withdrawal agreement. Given that there is an agreement in principle in existence between the UK and EU, it is likely that UK MPs will be asked to vote on the terms of the deal before the Christmas parliamentary recess, a mere six weeks away.

The window of opportunity for the CJEU is exceedingly tight. It received the Scottish reference on the 3rd of October 2018. Sixteen days later, the President of the CJEU confirmed that, given the constitutional seriousness of the case, the case would be expedited. It will be heard on the 27th of November 2018.

The UK Government has formally objected to this preliminary ruling request on a number of fronts. Firstly, the UK Government has published a policy paper to the effect that the question from the Scottish court is still a hypothetical one and that the CJEU has overstepped its judicial role in effectively acquiescing in this subterfuge. These arguments can be dealt with cursorily. As a cooperative horizontal judicial process between national courts and the CJEU, it is for the national court alone to determine the appropriateness of sending an EU law question to the CJEU for adjudication. As such, it is a subjective task for the judges seised of the case before them to assess whether they require a resolution to an EU law question in order to enable them to make a decision (See for example, Case 126/80 Salonia).  Secondly, if that is the case, then the answer from the CJEU is not merely an advisory one, rather it is a sine qua non of the national judges preforming their constructive and practical constitutional role.

The UK Government's second approach to taking exception to this Scottish court reference was to challenge the process of requesting assistance from the CJEU itself. The Advocate General for Scotland alleged that the proper course for this issue should have been for the Court of Session to have appealed the case up to the UK's Supreme Court for adjudication rather than sending the case to Luxembourg. The Inner House of the Court of Session, on the 8th of November 2018 refused leave to appeal to the Supreme Court. The UK Government has not given up and has more recently submitted legal papers to try to get the Supreme Court to order cancellation of the reference request from the Court of Session. The Supreme Court has confirmed receipt of these legal papers and has assigned the case to Lady Hale, Lord Reed and Lord Hodge. It is to be expected that a ruling will be forthcoming from the Supreme Court given the Supreme Court's statement itself that it is aware of the urgency of the matter and the fact that the CJEU will hear the Wightman case on the 27th of November 2018.

Regardless of the relative merits or demerits of such an approach by the UK Government, these legal actions evidence a worryingly poor grasp of EU law principles. It is a well-established doctrine of EU law that the Article 267 TFEU Preliminary Ruling Procedure is not an appeal mechanism and as such national courts are free to submit requests to the Luxembourg court, free of any interference from higher national courts (See for example Cases 36 and 71/80 Irish Creamery Milk Suppliers Association v Ireland ECLI:EU:C:1981:62 and Case 338/85 Fratelli Pardini SpA v Ministero del Commercio con l'Estero ECLI:EU:C:1988:194).

Superior courts of the Member States are of course free to issue guidelines to the lower courts on when references should be sent to the CJEU (See for example the dicta of Sir Thomas Bingham MR in R. v International Stock Exchange of the United Kingdom and the Republic of Ireland Ltd Ex p. Else (1982) Ltd [1993] QB 534 and the case of Emerald Supplies Limited & Others v British Airways Plc [2017] EWHC 2420 (Ch)), and the CJEU itself issues guidelines on how to refer EU law questions to it, however, these guidelines cannot fetter the wide discretion afforded to national courts to make their own decision on the appropriateness of an Article 267 TFEU reference.  The lack of knowledge of basic underpinnings of EU law at the heart of the UK Government is either negligence writ large or an unashamed attempt to circumvent well established judicial lines of communication between national courts and the CJEU. Either way, it diminishes the reputation of UK Plc. and conversely enhances the standing and reputation of the Scottish courts and politicians.

Nevertheless, inexorably the Brexit clock lurches forward and it remains to be seen whether Scotland can Scotch Brexit for the evident utility of the entire United Kingdom.

*Update (23 Nov 2018): on 20 November 2018 the UK Supreme Court refused to give leave to appeal against the decision to refer, on the grounds that the Court of Session judgment was not final. The CJEU will therefore hold a hearing in this case as planned on 27 November. Also, you can find the full text of the written legal arguments of Mr Wightman and others before the CJEU here. 

Barnard & Peers: chapter 27

Photo credit: Scotcourts.gov.uk