Thread by @StevePeers

Folks who hate the EU arguing in a non-EU court that the EU has breached EU law. The interesting wrinkle though is that courts in the UK *can* refer questions relating to much of the Protocol to the CJEU.

https://twitter.com/JP_Biz/status/1394249071515340803

In fact, arguably UK courts *must* refer questions about the protocol's compatibility with EU law to the CJEU, if they think it's invalid. That's the obligation for EU courts (Art 267 TFEU & case law), and the protocol extends Art 267 to UK courts re much of the protocol.

As for the human rights points, the freedom of expression (Art 10 ECHR) point is weak for reasons set out here -

https://twitter.com/StevePeers/status/1394252217402675202?s=20

But the free elections point (Art 3, protocol 1 ECHR) is sounder - cf Matthews v UK, where Gibraltar residents ought to get a vote re EU law.

But the awkward point for the NI unionist applicants is that the issue in Matthews v UK was about voting in the European Parliament. And the concerns here might arguably be addressed by *Ireland* providing for residents of NI to vote for Irish European Parliament seats.

It will, of course, be interesting to see how the UK govt defends the validity of the protocol it now professes to hate - despite it forming part of the oven ready deal, yada yada yada.

While the applicants don't like to admit it, the protocol forms part of UK law via being given effect by an Act of Parliament. This might explain their decision to invoke EU law, as a means of getting the Act set aside via the supremacy of EU law.

Whatever the chain of reasoning, it's always a joy to see loathers of EU law seeking to rely upon it.

Correction: seems like the applicants are invoking Art 10 TEU (principle of democracy), not Art 10 ECHR -

https://twitter.com/John_Cotter/status/1394260922705776640?s=20

But it's not clear that Art 10 TEU extends to non-EU countries, and in any event it partly refers back to the Euro Parliament: eur-lex.europa.eu/legal-content/…

Looks like the applicants' Art 50 argument is that Art 50 says that 'the Treaties shall cease to apply' in the UK -

https://twitter.com/JP_Biz/status/1394263181955108870?s=20

But it's strained to suggest this means that a country leaving the EU cannot agree to apply some EU law in a withdrawal/future relshp treaty

Ironically (again) the cases already pending before the EU courts re the withdrawal agreement argue that an aspect of EU law did *not* cease to apply to the UK - namely citizenship of the EU, for some or all Brits.

Remains to be seen if the argument is made that a permanent relationship with (part of) the UK cannot be part of a withdrawal agreement, as that issue falls outside the scope of Art 50. That's a rather stronger argument, in my view.

Only the protocol (technically, it's the Council decision concluding the withdrawal agreement that would be partially invalid). The CJEU might decide to rule that it remained in force provisionally to give time to negotiate a replacement.

https://twitter.com/GregorxxxSamsa/status/1394268751743397897?s=20