Britain’s withdrawal from the European Union seems likely to end up under review by the EU’s top court, which might insist on changes to any Brexit treaty, its chief justice said in an interview.
Koen Lenaerts, president of the Court of Justice of the European Union (ECJ), stressed that the political process was still in its early stages. It was impossible to foretell what aspects of Brexit might be referred to the ECJ by national courts handling cases raised by interested parties.
But asked if such a momentous EU political crisis was likely to end up at the Luxembourg-based court, the Belgian jurist said: “Yes, it is.”
Even “a lawyer with the wildest imagination” would be unable to anticipate exactly how, he emphasised: “But it probably will, one day or another, end up on the docket of the Court – not because of the Court, but because of parties bringing the case.”
Citing a judgement two decades ago that forced a change to EU banana trade pacts with Latin American states, Lenaerts said the ECJ could ultimately amend any post-Brexit EU-UK trade deal – though he stressed this was a purely speculative reflection.
His comments raised the possibility that Britain’s divorce terms from the EU could ultimately be shaped by the very court whose jurisdiction it is determined to escape, as Prime Minister Theresa May spelt out in a speech last month.
The prospect of court battles going on well after Brexit, expected to take effect in about two years’ time, underlines the uncertainty surrounding the process, which is outlined in a bare 261 words in Article 50 of the EU’s Lisbon Treaty.
British judges have already upheld some private complaints to oblige May to change tack on how the government launches the process and at least one case is under way, in Ireland, which campaigners hope can trigger an ECJ review of her plan.