Can The European Court Torpedo The Negotiations?

Can the European Court Torpedo the Negotiations?

Seems everywhere you look at the minute, it’s all about finding ever more creative and outlandish ways to try and thwart Brexit.

Today, of course, it’s Labour pumping up their Conference with threats to vote down any deal that amounts to more than just Brexit in name only.

The SNP obviously just want to delay, delay and delay the negotiations — that way they can delay, delay, delay their decision on another Scottish independence referendum.

But out here in Brussels, where the EU is supposed to be bound by the Article 50 withdrawal trigger, there’s even pressure from some quarters for the European Court to torpedo the whole negotiation.

A very clever, very articulate professor called Christophe Hillion, who specializes in Institutional Law in the European Union, came to the European Parliament’s Constitutional Affairs committee with a very clear message.

Professor Hillion previously urged Scotland to go for EEA membership — the key for him is defending the “sacrosanct” integrity of the single market, meaning the full freedom of movement that lies behind the Brexit vote.

Now Hillion has added two more tests to argue that the withdrawal negotiations themselves undermine the core purpose of EU law.

He told very interested MEPs on our committee that Brexit must respect EU primary law, must respect the EU acquis – or everyday rules and regulations built up over its lifetime — and also must contribute to the bloc’s wider objectives.

Sounds a bit like saying to an unwilling partner you can’t leave because it doesn’t suit me…

One of better-known German MEPS was salivating as he slipped his business card into Hillion’s hand on the way out.

The not-entirely-nutty professor claimed the dispute resolution mechanism designed to give Theresa May a way to say the ECJ would not still be final arbiter in all contentious decisions is itself, in fact, counter to EU law.

He said it would “undermine the powers of the Court”, and highlighted that the ECJ previously rejected an initial draft on the expansion of the European Economic Area…

He says the failure to agree how to implement Brexit as it affects the EEA, or in a nutshell the EFTA countries — Norway, Liechtenstein etc — already means ‘fragmentation of the single market’.

He says the UK attempt to “hijack” the withdrawal phase to steal a march on the negotiations over future relations across the Channel means the Council has overstepped its constitutional remit.

What does all this mean in practice, then?

He said, very plainly, that “the European Parliament could invite the ECJ to rule on all of this,” even before the negotiations are wrapped up, or certainly before March 29.

He says a long history of “strict interpretations” of bedrock EU law would suggest the ECJ would easily throw an Armageddon-sized spanner into the works…

Cue much scurrying around from Europhile plotters?

Not quite.

My people quickly took up Hillion’s issue with the law chief for the EU27 at the European Council.

Ahead of an October summit where they’re trying to camouflage increasingly desperate negotiations with the calling of a special November summit, the wonderfully-named and eminently sensible Hubert Legal takes a different tack.

Yes, Hillion’s legal argument holds more than water he said, but the Parliament as a whole will never take this nuclear option, he said.

Monsieur Legal deals in politics as much as the law — he’s the one who changed his interpretation of the Lisbon Treaty to say Scotland would need full unanimity to become a separate EU member, having initially told leaders a qualified majority decision would suffice.

He says the only way Hillion’s law could be invoked would be in a citizen challenge — meaning time to get back round all those signatories to a so-called second People’s Vote if Remainers want to sue the EU institutions at the ECJ and thwart Brexit this way.

And time, as everyone tells us, is fast running out…





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