General Court challenge to EU institutions’ Brexit discussion ban

Posted on 16 Sep 2016 by Brick Court

David Heaton

French campaign group Fair Deal for Expats has brought a challenge in the EU General Court to Commission President Jean-Claude Junker’s “presidential order” preventing Brexit negotiations with the UK until the UK has triggered TEU Article 50.

Mr Junker foreshadowed such an order shortly after the UK referendum result, and stated on 28 June 2016 that he had “forbidden Commissioners from holding discussions with representatives from the British government — by presidential order” and “told all the directors-general that there cannot be any prior discussions with British representatives”.

According to the Fair Deal for Expats website, the challenge is being brought under TFEU Article 263.  Its grounds include that the order contravenes the principle of sincere cooperation, has no proper basis and discriminates against UK citizens (who remain EU citizens).

One issue might be whether the claimant has standing to bring this challenge.  Under TFEU Article 263, a natural or legal person may challenge the legality of acts of the Commission where the act is “addressed to that person” or “a regulatory act which is of direct concern to them and does not entail implementing measures” (which do not appear to be the case), or where the act is “of direct and individual concern to” the person.  The CJEU’s case-law on what is required for direct and individual concern is restrictive.  In Case C-50/00 Unión de Pequeños Agricultores v Council [36], the CJEU reasserted that, for a person to be directly and individually concerned, a measure must affect “specific natural or legal persons by reason of certain attributes peculiar to them, or by reason of a factual situation which differentiates them from all other persons and distinguishes them individually in the same way as the addressee”.  It did so despite an Advocate-General’s opinion urging a widening of the test.  The application of this case-law to the present challenge, which appears to focus on the effect of the “presidential order” upon UK citizens, may be contested.