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

11 September 2016 by Rosalind English

Shortly 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.

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