Brexit Case at EU Court May Open Pandora's Box, Lawyer Says

(Bloomberg) -- European Union judges reviewing a case about whether Brexit can be revoked were given a stark warning: Any ruling would likely be used to sink Prime Minister Theresa May’s proposed deal to leave the EU.

A group of Scottish and English lawmakers seeking to reverse the so-called Article 50 process are trying “to co-opt this court into their ongoing political campaigning” to stop Brexit, Richard Keen, the U.K.’s lawyer, told the EU Court of Justice on Tuesday.

“In Greek myth, Pandora was given a large box on her wedding, which she was warned not to open,” he said at the hearing. “We respectfully plead that the court should not open this box.”

The hearing comes amid May’s uphill campaign to sell her deal to lawmakers and voters back home. Any ruling from the Luxembourg-based court that favors those who want to remain in the EU would help those campaigning to thwart Brexit with a second referendum.

The case was sent to the EU tribunal -- which is already a frequent target of Brexit opponents -- by a Scottish court that is asking guidance on whether the U.K. can unilaterally revoke Article 50, which triggered the Brexit process.

Lawyers for the Scottish and English politicians behind the case, argued that legal certainty needs to come before politics.

“Undoubtedly in the current circumstances it is politically charged, but it is a question of European law,” said Gerry Facenna, who represents two English lawmakers. “Parliament has the power to decide and it is the parliament that needs to have certainty about the legal framework.”

While lawyers for the U.K. and EU all want the politicians to lose, they don’t agree on much else. The U.K. is arguing that the case is essentially pointless because the government has no intention of backing out of Brexit and the court shouldn’t interfere while Parliament is reviewing the issue.

“If the court enters the field of parliamentary debate prematurely, then it does risk the accusation from one side or another that it is influencing the legislature or the executive in the determination of a highly charged political issue,” the U.K.’s Keen told a 26-judge court panel.

But the EU maintains that the remaining members of the bloc require a veto over the reversal of Article 50 to protect against any abuse of the process.

But lawyers for the EU institutions maintain that while Article can be revoked, it would only be possible with full unanimity from the remaining members of the bloc.

If that was not the case, “this would leave open the possibility that that member state could use its prerogative in an abusive manner, for instance, to stop the clock on negotiations only to re-notify its intention to withdraw some time later,” commission lawyer Karen Banks told the court.

The U.K.’s Department for Exiting the EU lost a bid to derail the case last week, as the country’s Supreme Court refused to hear an appeal that could have prevented it going to the EU tribunal.

The issue is complicated because while Article 50 of the EU’s Lisbon Treaty tells member states how to start the process of leaving the bloc, it offers no help on what to do it they change their mind.

Opinions are divided and it was the view of EU institutions -- that Article 50 can only be revoked with the full backing of the remaining 27 member nations -- that was attacked by the lawyer representing Scottish MPs.

“Inserting a requirement of unanimity in the European Council to make a member state’s revocation of withdrawal effective, would constitute a wholly unwanted redrafting of the treaty,” said Aidan O’Neill QC, the lawyer for Scottish lawmakers in the case. “It would curtail one of the most significant rights of a state and its peoples to decide democratically whether or not to remain in the EU.”

The hearing comes just two days after the U.K. agreed with the EU on the divorce terms at a special summit in Brussels, where European leaders warned British politicians they won’t get a better offer because there is no “Plan B.” The U.K. Parliament set Dec. 11 for a meaningful vote on May’s deal.

Even if a final court ruling comes after that date, the decision would not “be rendered moot or pointless” because Dec. 11 “is the beginning of a process which will continue for the next month or two,” O’Neill, the lawyer for the Scottish lawmakers, told the court.

While the court heard the case on an expedited basis, it didn’t release a date for the ruling.

In line with the U.K.’s reference to Greek myth, he concluded by saying that “what came out of Pandora’s box was not simply knowledge of the world’s evil, but ultimately hope, hope in and for a dangerous time.”

To contact the reporter on this story: Stephanie Bodoni in Luxembourg at sbodoni@bloomberg.net

To contact the editors responsible for this story: Anthony Aarons at aaarons@bloomberg.net, Emma Ross-Thomas

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