Britain’s departure from the European Union (EU) could end up being fought over in the highest European court, Europe’s most senior judge has warned.
There are “many, many different ways” the process could make it to the European Court of Justice, Koen Lenaerts told the Financial Times, as issues such as how Article 50 is used “can be interpreted by our court like any other provision of union law.”
Pondering the routes by which the process might come to the court for a ruling, he added: “I can’t even start intellectually beginning, imagining how and where and from which angle it might come.”
And although he declined to comment on the specifics of Brexit, he warned that there could be myriad unforeseen legal consequences of the bid to disentangle Britain from the bloc.
The European Court of Justice is ultimately the only court able to rule on questions of EU law, meaning that issues such as whether Article 50 is revocable after a formal notification could be put to the court.
It could also be asked to rule on the content of an exit deal, and the implications of such a deal for citizens, companies, and institutions.
Steve Peers, a professor of EU law at Essex University, said: “It’s probably only a matter of time before some aspect of the Brexit issue gets decided by the EU courts; and there’s no small irony in that prospect.”
However, professor of international law and author Ingrid Detter de Frankopan has suggested that the issue could be neatly sidestepped by Britain simply leaving the EU without triggering Article 50.
“Second rate lawyers are misleading everyone in the country by insisting that, in order to leave the European Union it is essential to ‘trigger’ Article 50 in its entirety,” she said.
“This line has been swallowed whole by the government, the media and commentators. It is, however, absolute nonsense. Under international law and under Article 50 (1) itself, only notice to leave is necessary.”
She added, “The horror that I feel about this misdirection is compounded by that the fact that if Article 50(2) is ‘triggered’ it implies that the UK government accepts that the EU will decide the conditions of UK’s withdrawal.”
Her solution is to “turn this situation on its head.
“In the media I see endless comments and discussion about who is going to be in the ‘negotiating team’ in Brussels. Have the UK’s leading politicians not yet learned that by entering at all in such discussions we just show our weakness: we have the right to leave and the EU has no right to stop our immediate exit not to impose any conditions.”