Tuesday 22 November 2016

Article 267 requires the Supreme Court to refer the Brexit case to the Court of Justice of the European Union

I think Theresa May's timetable to send an Article 50 Brexit notification to the European Union by the end of March 2017 is dead in the water.

Why?

Because the Law requires the Supreme Court to refer the matter of the meaning of Article 50 to the Court of Justice of the European Union.

Here is what Article 267 of the Treaty on the Functioning of the European Union says:

The Court of Justice of the European Union shall have jurisdiction to give preliminary rulings
concerning:
(a) the interpretation of the Treaties;
(b) the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union;
Where such a question is raised before any court or tribunal of a Member State, that court or
tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment,request the Court to give a ruling thereon.
Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court.
I've underlined the relevant parts of Article 267.

The Supreme Court Brexit case centres on the interpretation of Article 50 of the Treaty on European Union.

The Supreme Court is court of a member state from which there is no domestic means to appeal.

There is no doubt that the interpretation of Article 50 has been raised.

There is no doubt that there is no judicial remedy against a Supreme Court decision.

The Supreme Court should get on with referring the matter to the Court of Justice of the European Union  without further delay.



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