OPINION: REFERRING BREXIT TO THE COURT OF JUSTICE OF THE EUROPEAN UNION: WHY REVOKING AN ARTICLE 50 NOTICE SHOULD BE LEFT TO THE UNITED KINGDOM

ORIGINAL PUBLISHED ON EU LAW BLOG (NOVEMBER 14, 2016)
By Oliver Garner
An Encore to (R)Miller from the Court of Justice?

There is a potential European encore to the constitutional drama of the UK High Court decision in R(Miller) v Secretary of State for Exiting the European Union. The judgment found that the UK government cannot trigger Article 50 TEU without Parliament’s involvement. The government has already indicated its intention to appeal directly to the UK Supreme Court (UKSC). Certain commentators in the media have picked up on the possibility that the Supreme Court could refer (certain aspects of) the case to the Court of Justice of the European Union (CJEU). This has been referred to as ‘the constitutional equivalent of breaking the space-time continuum’.

Of course, as the reaction to the judgment in (R)Miller has shown, the UK media are not afraid of exaggeration. The first and most important thing to reiterate is that the CJEU could not act as the final constitutional arbiter of the question in the case of whether the UK government may use the royal prerogative to give notice under Article 50 TEU. The EU law clause is clear that the condition for the decision to withdraw is ‘accordance with [the] constitutional requirements’ of the Member State. Therefore, the final decision on the substance of whether these requirements have been fulfilled will always be for that Member State’s highest judicial authority. Instead, the possibility of a referral to the Court of Justice in the case concerns one specific aspect of the withdrawal clause: whether the notification to the European Council of an intention to withdraw under Article 50(2) is revocable. The silence of the clause can be seen to constitute a ‘gap’ in the law.

However, this post will argue that it is not necessary for the Court of Justice to prove an authoritative determination on this question of EU law in order for the UK Supreme Court to decide the specific question of UK constitutional law in the (R)Miller adjudication. Therefore – in the specific case of (R)Miller  – the UK court is under no obligation under Article 267 TFEU to refer the question to the Court of Justice of the European Union. The post will go on to consider the hypothetical situations in which there may be such an obligation to refer, and will suggest how the Court of Justice should determine the question in such a scenario.

The argument for an UKSC obligation to refer under Article 267 TFEU

Dr. Albert Sanchez-Graells has provided a robust argument for why the UK Supreme Court will be under an obligation in EU law to submit a reference under Article 267 TFEU. He states that legally a failure to refer could leave the United Kingdom exposed to infringement proceedings by the Commission. The fact that the explosive political consequences of the Commission embarking on such a proceeding makes this course highly unlikely does not change the legal reality. However, on this purely legal question, I would argue contra Sanchez-Graells that the UK Supreme Court does not need to interpret whether Article 50 enables or does not enable revocation of a notification in order to reach a decision on the specific question in the case of whether the United Kingdom’s constitutional requirements for withdrawing from the European Union have been fulfilled.

At paragraph 10 of Thursday’s judgment, the High Court outlined that it was ‘common ground between the parties …[that] a notice under Article 50(2) cannot be withdrawn, once it is given’. As an initial point, therefore, it could be argued that the question of revocability will not come up for determination before the Supreme Court as neither party will raise the argument. However, Dr Sanchez-Graells argues that when the case reaches the Supreme Court on appeal ‘[e]ven if the parties do not challenge or even raise to the UKSC’s consideration the matter of the (ir)reversibility of an Article 50 notification, it is a logical given that the UKSC needs to take a stance on this point in order to be able to rule on the case’. He grounds this on the requirements of the CILFIT test: accordingly the UKSC will be under an obligation to refer unless (i) the question raised is irrelevant; (ii) the EU provision in question has already been interpreted by the Court; or (iii) the correct application of EU law is so obvious as to leave no scope for any reasonable doubt.

Following Sanchez-Graells’ argument, it seems clear that requirements (ii) and (iii) of the CILFIT test are not fulfilled: Article 50 TEU has never been interpreted by the court, and the silence on revocability means that there is reasonable doubt as to its application. However, I would challenge Sanchez-Graells’ statement that ‘it is inconceivable…to argue that the…(ir)revocability of a notice under (Article 50) is irrelevant for the adjudication of this case’. In formalistic terms, it could be argued that the appellants (the government) and the respondents (the initial claimants) proceeding on the assumption that notice under Article 50 TEU is irrevocable means precisely that the question is not relevant for the adjudication of the specific question in the case. However, even if this position were changed and the government argued that notice was revocable, for the purposes of UK constitutional law the consequences remain binary: if notice is not revoked then the salient consequences determining the question as outlined by the High Court will proceed; if notification were revoked then such consequences would not occur. This does not change the determination of the prior question of how exactly such notification may be achieved. Indeed, the fact that the ‘adjudication of this case’ concerns such questions of the internal constitutional requirements of the United Kingdom shows that the question does not yet fall within the scope of the Court of Justice’s interpretative authority because the relevant EU law – Article 50 – has not yet been activated.

The Activation of the Court of Justice’s Interpretative Authority

I would respectfully disagree with Dr Sanchez-Graells’ initial assumption that, before the activation of Article 50, it is necessary that the CJEU provides an answer to the question of revocation. To explain this, we can reverse the analogy of statutes such as the UK’s European Communities Act 1972 acting as a ‘bridge’ to activate the direct effect of EU law in the national order (as most recently reiterated by the High Court’s decision in (R)Miller at paragraphs 37-54). The notification by a Member State of its intention to withdraw from the European Union under Article 50(2) TEU can similarly be understood as a ‘bridge’ from the internal constitutional order that activates the EU procedural law outlined in the rest of Article 50. The chronology is that a Member State decision is made at the purely internal level to withdraw; this withdrawal is then communicated to the Union by the bridging communicative act of the government giving notice to the European Council; consequently, this triggers the procedural EU law regulating the conditions of withdrawal.

Building upon this, a hypothetical situation can be posed to illustrate the situation in which the UK’s highest judicial authority would be under an obligation to refer under Article 267 TFEU. If the United Kingdom, having already triggered Article 50 TEU, make a unilateral attempt to revoke this notice, and this exercise of prerogative power were submitted to judicial review before the UK courts, then a substantive interpretation of EU law would be necessary to determine the question in the case. Consequently, in such a hypothetical case, the UK court would arguably violate its obligations under Article 267 TFEU if it failed to refer the substantive question of whether revocation is allowed under Article 50 TEU to the Court of Justice of the European Union.

I would accept that in this hypothetical situation it is necessary as a matter of EU law for the Court of Justice to have the final interpretative authority over the legal ‘gap’ concerning revocation of notification found in Article 50. However, I would argue that the most desirable way in which the Luxembourg Court could exercisethis authority would be to decide that the question of revoking notification falls under the constitutional requirements of the Member State. Just as Article 50(1) specifies that a decision to give notification falls under these requirements, so too should a decision to reverse this process. This would provide a coherent symmetry between the procedures for giving notification and withdrawing notification.

Of course, if negotiations of a withdrawal treaty are at an advanced stage then this could lead to a great deal of political upheaval. However, such upheaval cannot function as a reason for the Court of Justice to find such a revocation to be inconsistent with EU law –  particularly with regard to the silence of Article 50 on the issue. This position is supported by the argument of Lord Kerr – one of the drafters of Article 50 TEU – that notification is revocable. He argues that if a country were to decide during exit negotiations that they wished to halt the withdrawal process then “everybody would be very cross about it being a waste of time…but legally they couldn’t insist that you (the withdrawing state) leave”. Consequently, my argument is that procedurally the Court of Justice must be the final arbiter of this particular issue of Article 50. However, on the substantivequestion, once the national court has fulfilled its obligation under Article 267 TFEU to refer, the CJEU should fill the legal gap by determining that revocation of an Article 50 notice is a matter for the internal constitutional requirements of the withdrawing Member State.

Conclusions: No Obligation to Refer, but One Final Twist?

In the present proceedings in (R)Miller, I would argue that the UK Supreme Court is not under an obligation to refer the question of the revocability of a notice under Article 50 TEU to the Court of Justice of the European Union. This is because determining the substantive answer to this gap in the EU law found in Article 50 TEU is irrelevant for the national court to determine the answer to the UK constitutional law question of whether the requirements for withdrawing from the European Union have been fulfilled.

However, the situation changes if Article 50 has been triggered and the question of whether this notification can be revoked comes before the UK Courts. In such a situation, the obligation to refer the question to the Court of Justice of the European Union would bite as this concerns a directly relevant substantive interpretation of EU law. If this situation were to arise, my personal opinion is that it would be desirable for the Court of Justice to determine effectively that revocation of notification is permissible in EU law if such revocation is in accordance with the constitutional requirements of the withdrawing Member State.

Therefore, moving back to the present litigation, in the unlikely event that the UK Supreme Court does exercise its discretion to refer the question of revocation to the Court of Justice, I would hope that the Luxembourg court shows the adjudicative wisdom to find that the question is not relevant to the determination of the present case. However, as a final twist, in the unlikely event that a reference is indeed submitted by the UK Supreme Court in December then the Court of Justice could pre-empt the hypothetical situation that I propose above. The Luxembourg Court could outline in obiter dicta that, if the question of revocation is directly on point in the future, then it is a question for the national judicial authority to decide. Consequently, if the direct question of revocation of Article 50 TEU ever does come before a UK Court, they could proceed to judgment on the question without a reference. This would be justified in EU law on the basis that requirement (ii) of the CILFIT test has been fulfilled by the Court of Justice’s prior obiter dicta interpretation. Therefore, I would maintain that if  the Court of Justice is ever called upon to provide an answer to the question it should find that the final substantive decision of whether an Article 50 notification can be revoked should be left to the internal constitutional requirements of the United Kingdom.

To summarise:
(1) The UKSC in the (R)Miller appeal will not be obliged under Article 267 TFEU to refer the question to the CJEU of whether revocation of an Article 50 TEU notice is possible because under requirement (i) of the CILFIT test this question is not relevant to determine the case;

(2) In contrast, if after Article 50 TEU is triggered the question of revocation came before the UKSC, then it would be under an obligation to provide a reference as the question would now be directly relevant to determining the case;

(3) Finally, in the unlikely event that the CJEU does consider that the question of revocation is ‘necessary to enable it to give judgment’ and it exercises the discretion under Article 267 TFEU to refer to the Court of Justice then the Luxembourg Court could pre-empt the hypothetical situation outlined above by providing an interpretation of whether revocation is possible under Article 50 TEU.

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