‘He told me I should sue the EU.’ This was the ‘tough’ advice Prime Minister Theresa May said she had been given by President Donald Trump during his visit. Coming from the author of The Art of the Deal, the President’s advice must have given the Prime Minister pause for thought. How might her advisers have reassured her that she was right to reject it?
First, membership of the EU is not compulsory. It is something that is open to any European State provided it meets certain conditions. Once a State has joined the EU, it is entitled to withdraw under the famous Article 50 of the Treaty on European Union, one of the Treaties on which the EU is based. Exercising its national sovereignty, the UK joined in 1973 (a decision endorsed by referendum in 1975) and to trigger Article 50 in March 2017. Neither step was forced on the UK by the EU or anyone else.
Secondly, the UK is still an EU Member State. That is because the withdrawal process set out in Article 50 has not yet run its course. The UK will cease to be a Member State in March 2019 when the negotiating period laid down in Article 50 runs out. That period can be extended, but the Government has made it clear it would not agree to this.
That said, the second of the Treaties on which the EU is based, provides several legal remedies that could be used by the UK to challenge aspects of the Brexit process and the way it is unfolding. However, they all involve proceedings before the European Court of Justice, whose jurisdiction it wishes to escape.
The first provision concerns the way the EU negotiates and concludes international agreements. Article 50 says that the withdrawal agreement must be negotiated in the same way. The provision concerned forms part of a longer article which also says that a Member State may ask the Court for an opinion on the legality of a proposed agreement. If the Court gives a negative opinion, the agreement cannot enter into force unless it or the Treaties are amended.
Article 50 does not refer expressly to the provision concerning the Court, but its connection with another part of the same article, which is expressly mentioned may mean that it covers the withdrawal agreement. Its purpose is to avoid the inconvenience of implementing an international agreement only to discover later that it is unlawful. That rationale applies equally to the withdrawal agreement.
The second provision permits a Member State to bring proceedings before the Court against another Member State if it thinks that State has broken a Treaty obligation. So action under this provision could be taken by the UK against any or all of the EU27 if it thought their conduct in the negotiations was incompatible with the Treaties.
Another provision allows Member States to challenge the legality of certain measures taken by the EU. If the challenge succeeds, the measure in question is quashed by the Court. This might have been used to challenge the negotiating guidelines issued by the European Council under Article 50. It might also be used if the UK sought to withdraw its Article 50 notification and the European Council refused to allow it to do so.
A general provision prevents Member States from submitting disputes ‘concerning the interpretation or application of the Treaties to any method of settlement other than those provided for therein.’ This means that, while the UK remains a member, it is limited to the remedies for which the EU Treaties provide.
It is not only the Member States who are able to pursue legal claims before the Court. Private litigants may also do so. Two such cases were heard in July 2017. Their outcome might clarify some of the consequences of Brexit.
The UK was surely right to seek to withdraw from the EU in accordance with Article 50 rather than seek a more confrontational way out. A major factor in that decision was the UK’s wish to continue to be seen as a reliable partner, particularly important when seeking trade deals with other countries around the world. The UK also aspires to have continuing friendly relations with the EU. These would be very difficult to achieve if it had resorted to a scorched earth policy of departure.