Charles Day

The small print of today’s Article 50 opinion reveals yet another ECJ power grab

The European Court of Justice is back in the headlines this morning. Its Advocate General, Manuel Campos Sanchez-Bordona, has declared that the UK might be able to cancel Brexit by revoking Article 50 unilaterally. So is that it settled? Not at all: nothing, with the ECJ, is ever that simple. In fact, the whole episode is a good chance to look at the ECJ and the way it works – and then ask if this is the kind of supreme court that Britain really wants to stay under.

Take what happened this morning. We learn via a three-page press release what Sanchez-Bordona thinks about Article 50. An hour after that the ECJ released a one-minute video clip (not in English). An hour after that we got the legal opinion. So let’s look at that.

  • Paras 6 to 10: the Advocate General relies on International law. That’s extremely curious, as the EU treaties expressly exclude international law.
  • Paragraph 11: he looks at the Act to ratify the Withdrawal Agreement – which is curious as that is not part of the question of notice under Article 50.
  • Paras 32 to 57 deal with the question of whether the ECJ can even rule on this – the government’s point. Then – surprise, surprise! – the ECJ says the ECJ does have lots of powers.

And the conclusion:

‘When a Member State has notified the European Council of its intention to withdraw from the European Union, Article 50 of the Treaty on European Union allows the unilateral revocation of that notification, until such time as the withdrawal agreement is formally concluded, provided that the revocation has been decided upon in accordance with the Member State’s constitutional requirements, is formally notified to the European Council and does not involve an abusive practice.’

And paragraph 153 says:

‘In the second place, the antidote to the misuse of the right of withdrawal can be found in the general principle that abusive practices are prohibited, established by the Court, according to which EU law cannot be relied on for abusive or fraudulent ends and the application of EU legislation cannot be extended to cover abusive practices by economic operators.

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