Could the Article 50 litigation result in a reference to the European Court of Justice?

17 Oct 2016

The High Court is currently considering the argument that the Crown has no power to trigger Article 50 of the Treaty on European Union by use of the Royal Prerogative and without an Act of Parliament. One issue that has arisen in commentary on that case is whether it could result in a reference to the Court of Justice of the European Union (“CJEU”).

It is important to be clear about what a reference to the CJEU is and when it can be (or in some cases has to be) made.

Article 267 of the Treaty on the Functioning of the EU provides that, where a national court has to resolve a point of EU law in order to decide a case, it may refer that point of law to the CJEU for a preliminary ruling. It goes on to provide that where the national court is one from which there is no appeal (for example, in the UK, the Supreme Court), it must make such a reference – though the CJEU has also ruled that such a court need not do so where the answer to the question of EU law is clear (the “acte clair” principle).

The key point for present purposes is that the power (or duty in the case of a national supreme court) to make a reference to the CJEU arises only when the answer to the question is necessary to decide the case. If the case can be answered without resolving the point of EU law, that is what the national court must do. In short, a national court cannot use the preliminary ruling procedure to resolve a point of EU law to which it might be nice to know the answer but which is not necessary to the decision of the case before it. And there are a number of cases where the CJEU has declined to rule on a question which it thinks it is being asked as a matter of academic curiosity rather than because its answer is needed to resolve the case.

The point of EU law that has been identified as potentially requiring a reference to the CJEU is the question of whether an Article 50 notification can be withdrawn by the Member State making it before it leaves the EU. Article 50 is silent on the question, and it is hard to see that it could be regarded as “acte clair”. (For what it is worth, my view is that such a notification is reversible by the Member State concerned: the silence of Article 50 on the point is not a reliable basis for arguing the contrary, and it would, in my view, be an extraordinary result, in a Union founded on democratic values and with the aim of sharing a peaceful future – see the preamble to the EU Charter of Fundamental Rights – for a Member State that had democratically changed its mind on the question of leaving the EU then to be forced out against its will. That view is shared by a number of commentators including Sir David Edward KCMG, a former Judge of the CJEU.)

The question, however, is whether there are any circumstances in which it would be “necessary” for the High Court (or in due course the Supreme Court) to answer that question in order to decide whether Article 50 can be triggered by the Crown under the Royal Prerogative.

In my view, it is hard to see that there could be such circumstances.

At present, the claimants are proceeding on the basis that Article 50 is not reversible (or at least that it has to be assumed that it is not), and the Crown is not seeking to argue that it is. The Crown’s position may well be because in a wider context it does not suit the present Government, mindful of possible political difficulties ahead, to argue that there is room for the Article 50 process to be reversed. But, in any event, that is its position.

The fact that the parties are agreed on the point does not of course mean that the courts are bound by that. It is open to a court to decide – whatever the parties say – that a point is open to argument and that it needs to be resolved before a case can be decided. And the question of a reference to the CJEU is for the court, not the parties.

But I do not see that a CJEU reference is likely in this case. It has to be remembered that, whether or not Article 50 is reversible, there are a number of other reasons (no matter how unlikely politically) that could stop it resulting in the exit of the Member State giving the notification. The most obvious of those is a renegotiation of the Treaties during the Article 50 period. Or the other Member States could, acting unanimously, agree to postpone the date of exit far into the future.

The Claimants’ case does not therefore, in my view, depend on asserting that an Article 50 notification is irreversible. Rather, it depends on asserting that it sets in train a process that has two features: (i) unless something else happens, the Member State falls out of the Treaties two years later; and (ii) the “something else” (reaching an Article 50 agreement with a longer period; unanimous extension of the Article 50 negotiating period; renegotiation of the Treaties, or withdrawal of the Article 50 notification) is not an event over which Parliament has any legal control. (Note that if the Government is right that invoking Article 50 is a matter of the Royal Prerogative, withdrawing an Article 50 notification must also be a matter for the Prerogative and over which Parliament has no legal control – a point on which Brexiteers championing the powers of the Crown in the present case might want to reflect.) Since point (ii) does not depend on whether Article 50 is reversible, it is hard to see why the question of reversibility would have to be resolved before deciding the case. And, as I explained above, unless the point of EU law has to be resolved by a national court, the national court does not have to (and indeed should not) refer it to the CJEU.

So, as a matter of law, and subject to the general caveat that unexpected things happen in courts, I do not see that a CJEU reference is likely. It also seems to me to be highly unlikely that the Supreme Court (whose decision it would be) would want to take that step: the Supreme Court would be well aware of the political storm that would arise, and of the delay inevitably caused by a reference. Further, although those of us who have appeared before the Supreme Court may sometimes struggle to remember this, even Supreme Court judges are human: and I suspect that this is just too fascinating and important a case for them to want to leave anyone else to decide it.

Unfortunately, that will leave unresolved the important question of whether an Article 50 notification is reversible. I have set out my view that it is: but uncertainty on the point may be something with which we shall all have to live.