Juncker’s ban on post-Brexit negotiations may be illegal

11 September 2016 by

30n02junckertwoap-485712Shortly after the Brexit referendum, the President of the EU Commission Jean-Claude Juncker declared that he had

forbidden Commissioners from holding discussions with representatives from the British government — by presidential order.

In effect, he has prohibited any executives in the EU Commission from embarking on negotiations with British government representatives before the government triggers the exit process under Article 50. Now a legal challenge is being proposed to the legality of Mr Juncker’s declaration. There is no basis for this so-called “presidential order”, say the challengers, a group of British expats seeking to protect their interests in the negotiations over the UK’s exit.

The group, Fair Deal for Expats, represent UK citizens living in France, Belgium, the Netherlands, Spain, Germany, Republic of Ireland, Italy and Slovakia. The grounds for annulment include a claim that

Mr Juncker’s order contravenes the principle of sincere co-operation and that it discriminates against Britain and its citizens, who are still members of the EU.

They also claim that Mr Juncker’s declaration

infringes fundamental the rights of EU citizens who live in another EU country because no immediate and direct negotiations can take place to secure those rights.

The legal team acting for Fair Deal will argue that is no such principle as a “Presidential Order” in any European Treaty and that Juncker’s note “amounted to the President purporting (unlawfully) to make such a policy or create such a principle.”

According to Fair Deal’s president, John Shaw,

Juncker’s ban needs to go and the UK needs time to have discussions and negotiations before the UK triggers Article 50, in accordance with the UK’s constitutional requirements  –  which we contend requires Parliament’s involvement.

The group is also intervening in the High Court challenges to the referendum, to be heard in October. Crowdsourced funding for these actions is being sought here.

Both legal battles will attract coverage. But one aspect of the European Court action worth highlighting is Fair Deal’s chances of getting past the threshold. It is extremely difficult for an individual, or group of individuals, to mount a challenge to an act of an EU institution – in this case, the Commission, represented by its President. Look at David Hart QC’s post on the “Inuit” challenge to an EU regulation regarding sale of seal products. The EU Treaty provision governing access to the CJEU – Article 263 – is, in Hart’s words, “a masterpiece in opacity”. He explains how the EU institutions effectively defend themselves from challenges by limiting them to ill-defined “regulatory acts”, and acts that are of “direct and individual concern” to the challengers. Most non-state actions for annulments of EU acts have been beaten off with these restrictions. A full analysis can be found in a recent article by UKHRB contributor Michael Rhimes.

In the post-Brexit climate, where individual voices in the EU are clearer than the bodies they represent, Article 263 may not be quite so effective as a rampart against individual challenges such as the one contemplated by Fair Deal.

Sign up to free human rights updates by email, Facebook, Twitter or RSS

Related posts:

4 comments


  1. daveyone1 says:

    Reblogged this on World Peace Forum.

  2. Geoffrey says:

    Every party in this matter seems to be making up their own law as they go along.

  3. Tore Christiansen says:

    And now another GREAT danger, the trade deal between Canada and the EU which is agreed but not yet signed. If signed before Brexit sign article 50, the UK can not later change anything in this trade deal which has all the TTIP conditions and more.

  4. martinned says:

    It seems to me that this action indeed has virtually no chance of passing the Plaumann threshold – it certainly isn’t a regulatory act, indeed it may not be an act at all – and if it should be declared admissible it has an even smaller chance of winning on the merits.

Comments are closed.

Welcome to the UKHRB


This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates


Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.

Subscribe

Categories


Tags


Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery British Waterways Board Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Commission on a Bill of Rights common law communications competition confidentiality consent conservation constitution contact order contact tracing contempt of court Control orders Copyright coronavirus costs costs budgets Court of Protection crime criminal law Cybersecurity Damages data protection death penalty defamation DEFRA deportation deprivation of liberty derogations Detention Dignitas diplomacy disability disclosure Discrimination disease divorce DNA domestic violence duty of care ECHR ECtHR Education election Employment Environment Equality Act Equality Act 2010 Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice evidence extradition extraordinary rendition Facebook Family Fatal Accidents Fertility FGM Finance foreign criminals foreign office foreign policy France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage gay rights Gaza Gender genetics Germany Google Grenfell Gun Control Health HIV home office Housing HRLA human rights Human Rights Act human rights news Human Rights Watch Huntington's Disease immigration India Indonesia injunction Inquests insurance international law internet inuit Iran Iraq Ireland islam Israel Italy IVF ivory ban Japan joint enterprise judaism judicial review Judicial Review reform Julian Assange jury trial JUSTICE Justice and Security Bill Law Pod UK legal aid legal aid cuts Leveson Inquiry lgbtq liability Libel Liberty Libya lisbon treaty Lithuania local authorities marriage Media and Censorship mental capacity Mental Capacity Act Mental Health military Ministry of Justice modern slavery morocco murder music Muslim nationality national security naturism neuroscience NHS Northern Ireland nuclear challenges Obituary parental rights parliamentary expenses scandal patents Pensions Personal Injury physician assisted death Piracy Plagiarism planning planning system Poland Police Politics Pope press prison Prisoners prisoner votes Prisons privacy Professional Discipline Property proportionality Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries quarantine Radicalisation rehabilitation Reith Lectures Religion RightsInfo right to die right to family life Right to Privacy right to swim riots Roma Romania Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials sexual offence Sikhism Smoking social media social workers South Africa Spain special advocates Sports Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance sweatshops Syria Tax technology Terrorism tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine universal credit universal jurisdiction unlawful detention USA US Supreme Court vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe

Disclaimer


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: