Thread by @StevePeers

1/ A number of people are tweeting on this case, which the EU General Court is due to hear on Thursday. Here's my overview of the legal issues.

Court to hear Brexit challenge by 97-year-old WW2 veteran

theguardian.com/politics/2018/…

2 The case is a challenge to the EU Council negotiation mandate for the Brexit withdrawal agreement. A summary of the arguments is here: eur-lex.europa.eu/legal-content/…
The mandate and its annex, which are both being challenged, are here:
consilium.europa.eu/register/en/co…

3 There are three elements to the case: admissibility, merits (if admissible), and outcome (if successful). I will look at them in reverse order.

4 Outcome: this is a challenge to the *Council*. The UK can't be sued in the EU General Court. Shindler et al are only seeking annulment of the Council decision. (The Court could annul it in part).

If they win then the Commission has to stop negotiating the withdrawal agreement.

5 But depending on the reason they won (they might win on some points but not others), it might be possible to fix legal flaws and resume the Brexit talks.

The most important argument is about the referendum franchise. If they win that then EU can't proceed without a new ref.

6 The judgment (if the challenge succeeds) wouldn't directly bind the UK. But a ruling on the franchise issue may well lead to attempts to restart litigation on this point in the UK. The UK government and Parliament might well aim to frustrate it. All very speculative though.

7 The merits. The first point argues that Euratom withdrawal shouldn't be linked to EU withdrawal. I don't agree: eulawanalysis.blogspot.com/2017/01/the-uk…
But the point has not been decided.
The second point: the withdrawal agreement has to be ratified by Member States.

8 If Shindler won the second point it would be very difficult to ratify the withdrawal agreement in time. Brexit would go ahead without a deal (unless an EU-only part could be identified). The counter-argument is that Article 50 says nothing about Member State ratification.

9 Next: the franchise argument. The counter-argument is that the franchise is to be determined by the UK, since Article 50 refers to national constitutional requirements. Shindler already lost in the UK courts.

10 Next: people in the UK overseas territories should have voted. Counter-argument: the ECtHR has said Gibraltar should vote for the European Parliament but the overseas territories are not as linked to the EU.

11 Finally: the mandate doesn't provide enough certainty for those who have moved. Counter-argument: only the actual withdrawal agreement could do that.

12 Admissibility: the Council can be sued, and a negotiating mandate can be challenged. But do the applicants have standing?

Here's the test, from Article 263 TFEU.

13 The Council decision isn't addressed to the applicants. The case law on "individual concern" interprets that requirement very narrowly. The case law on "direct concern" and "implementing measures" suggests that they can only sue if the mandate has final legal effects.

14 So admissibility could be a problem. Sometimes the EU courts ignore admissibility and rule on the merits, *if* they are going to rule against the applicants anyway. That would mean Shindler losing, but the judgment might make important points in passing, eg on acquired rights.

15 Next steps: the judgment would usually be out in the autumn, although a ruling is fast tracked on rare occasions. It can be appealed to the CJEU. The CJEU will likely rule on Brexit and European Arrest Warrants in the meantime.

16 I don't like to predict judgments, although as I have explained this challenge faces a number of hurdles, and Brexit could potentially proceed in some form even if it succeeds. It could potentially be very important if the court rules on the merits, but that's not certain. //