One of Britain’s judges at the Court of Justice of the European Union described Brexit as a crisis for his home nation of Dunkirk proportions.
Ironically, a World War II British Army veteran’s lawsuit at the EU tribunal could yet come to the rescue of those feeling stranded by the U.K.’s decision to go it alone.
The case of Harry Shindler, a 96-year-old who took part in the liberation of Rome, is one of a handful of Brexit-related cases starting to make their way through the Luxembourg-based EU court, which is loathed by supporters of the U.K.’s departure from the 28-nation bloc.
Shindler “fought for liberty and Europe,” said Julien Fouchet, a French lawyer who took on the case. “And he was not allowed to vote. I find this just shocking.”
Fouchet’s clients argue the EU’s decision in May last year to start Brexit talks was illegal because citizens living outside the U.K. for 15 years were denied a voice in the momentous plebiscite. The EU body that represents the bloc’s governments had rejected their challenge as inadmissible. The court case now pending will decide whether that was correct.
“These are European citizens who risk losing their EU rights even though they didn’t have a say in the referendum or in the legislative elections, and so they were not given a voice in the entire procedure,” said Fouchet. “It’s of constitutional significance that should really interest the judges.”
Out of the five pending cases with a link to Brexit, Shindler’s is the only one that directly challenges an EU decision. The remaining cases include an appeal of a lower EU court ruling, and three referrals from a national tribunal.
Far more highly publicized and high-stakes cases contesting Brexit have failed so far to win referral to the EU top court. The other pending cases don’t have the same potential to wreak havoc as Shindler’s and haven’t had hearing dates fixed yet.
These range from questions on the post-Brexit scope of EU trademark law, to what happens with asylum seekers or people subject to an arrest warrant in Britain after it leaves the bloc.
One case referred to the EU top court by an Irish tribunal last November seeks clarity on whether the U.K.’s decision to exit the bloc should be taken into account when dealing with a transfer of an asylum-seeker to Britain.
The Irish Supreme Court is also asking the EU court’s guidance on how Brexit will affect the system of European arrest warrants and specifically as to how “the consequential uncertainty” of Brexit will affect a person sought by the U.K. under such an arrest warrant.
A similar dispute was sent to the EU court by the Irish High Court in May, under a special process for urgent cases, to get certainty about how the arrest warrant system will work for people sent to a soon to be non-EU nation.
Another suit involves a company that makes alcohol breath and drug testers. Alcohol Countermeasure Systems is challenging a ruling that backed a U.K. firm’s trademark rights and is asking the tribunal to stay the case “until the end of the Brexit process.” It argues that post-Brexit, a U.K. right shouldn’t be allowed to trump an existing EU trademark protection.
After Britain voted to leave the bloc in June 2016, lawsuits at home forced Prime Minister Theresa May to stop her attempt for a quick exit. U.K. judges were labeled in some newspapers as “Enemies of the People” for backing a lawsuit that gave Parliament more of a say in the Brexit process.
The EU Court of Justice won’t want to prejudge the outcome of political processes “if it can avoid it, unless there’s been a clear violation of previous EU law by a member state,” said John Springford, deputy director of the Centre for European Reform in London.
Frustration has been mounting on the EU side over the continued uncertainty surrounding Brexit -- even among the otherwise more discreet members of the bloc’s two tribunals that make up the Court of Justice of the EU.
“I cannot recall a greater sense of crisis since Dunkirk in 1940, or Suez in 1956, for the United Kingdom,” Ian Forrester, a Scottish judge at the lower EU tribunal -- known as the General Court -- told a Brussels legal conference on June 21.
The U.K. is "passing through a period of extraordinary instability and confusion," he lamented. And it is "not at all clear what will be the future relationship" with the EU.
©2018 Bloomberg L.P.