First, last Monday in its Judgment in Case T-458/17 Shindler and Others v Council of the European Union the Court of Justice of the European Union held that the application for annulment of the decision authorising the opening of Brexit negotiations, brought by thirteen British citizens who live in EU Member States other than the UK, was inadmissible. The applicants based their claim on the fact that, as UK citizens living in another Member State, they were unable to vote in the 2016 referendum. They claimed that this had a direct impact on the rights which they derive from the Treaties. and sought to annul the act by which the Council accepted the UK’s notification of intention to withdraw from the EU. The Court noted that, although the decision of the Council authorising the opening of the Brexit negotiations had legal effects as regards the relations between the EU and its Member States and between the EU institutions, in particular the Commission, which was authorised by that decision to open negotiations for an agreement with the UK, it did not directly affect the legal situation of the applicants. The action was dismissed as inadmissible since the Council’s decision did not produce binding legal effects capable of affecting the interests of the applicants by bringing about a distinct change in their legal position.
Second, in Susan Wilson v The Prime Minister this Friday, 7 December, the Administrative Court is due to hear an application for judicial review of the UK government’s giving of notice under art.50 on the grounds that “facts recently revealed since the Prime Minister exercised her power under s. 1 of the European Union (Notification of Withdrawal) Act 2017(“the 2017 Act”) to notify the European Union (“EU”) of the UK’s intention to leave the EU show that the 2016 referendum (“the Referendum”) on whether the UK should remain a member of the European Union (“the EU”) was vitiated by illegality and/or unlawful misconduct.” This is particularised with reference to the recent finding by the Electoral Commission that serious offences were committed by the designated campaign for leaving the EU and by others, in breach of the statutory framework established by Parliament for the Referendum. The applicants are seeking a declaration that the result of the EU Referendum is invalid and asking for the decision of the Prime Minister to invoke Article 50 to be quashed.
And we still await the CJEU’s decision on whether an article 50 notice can be unilaterally withdrawn by the Member State that gives the notice.