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Study: EU court likely to say its ruling trumps UK court on Brexit

WHETHER the UK is subject to EU court ruling on the legality of its will to leave the European Union has been identified as a point of contention in a Brexit implications study in Chicago's National Law Review.

The study by Jens Rinze, Frankfurt partner with Cleveland international law firm Squire Patton Boggs, had little to say on British view of the matter, but was clear what the European view was likely to be.

"The Treaty establishing the European Economic Area the European Court of Justice held that the EEC-Treaty, albeit concluded in the form of an international agreement, nonetheless constitutes the constitutional charter of a Community based on the rule of law." he said.

"Accordingly, intention to withdraw from the European Union is a constitutional rule of the European Union subject to legal and constitutional review by the [European] Court of Justice." said Dr Rinze.

Dr Rinze said that given the "autonomous approach which the Court of Justice takes in respect of interpreting and applying European law independent from the individual domestic approaches of EU Member States" it is likely that it would not defer to national courts in this matter.

"This is because the Court of Justice would argue that the European Union is a constitutional Union which exists outside of and beyond mere international treaties," said Dr Rinze.

Also discussed without conclusions were questions of whether Britain could declare itself ready to quit the EU on the authority of the government versus and parliamentary vote on the question or a new election.

Another avenue pursued, again without conclusion, whether proceedings in front of the Court of Justice under Article 263 of the Treaty on the Functioning of the European Union (TFEU) could be undertaken.