In a variety of cases, #Brexit starts to reach EU Court of Justice

“There are already Brexit cases pending,” ECJ President Koen Lenaerts told a news conference. They range from trademark cases to the extradition of a criminal, he said, adding: “Fact is stranger than fiction.”

Lenaerts noted that he has been predicting a variety of Brexit cases since Britain voted in 2016 to leave.

Some people campaigning to stop Britain’s exit next March have tried to bring national cases that oblige the Luxembourg-based ECJ to interpret the hitherto unused Article 50 of the EU treaty in a way that would challenge the British government’s view that the article means Brexit cannot be stopped.

In one, a Spanish court asked whether an EU trademark could be enforced after March 2019 if it was based on British trademark protection. In the second, an Irish court wondered whether it could send a criminal to Britain to serve a sentence that would extend beyond Brexit.

A third case, more directly related to complaints by Brexit opponents, concerns British citizens in The Netherlands, who asked a Dutch court to assure them of residence rights after Britain left the EU. Lenaerts said the Dutch court agreed to seek ECJ input but was holding off pending a local appeal.

Lenaerts acknowledged that any ECJ decision which overturned British parliamentary legislation would be particularly controversial, because Britain, unusually in Europe, has little national tradition of courts ruling laws unconstitutional.

But he also noted that Britain had been a full participant in the EU legal system and remained so. It was still bringing new requests for rulings on EU law, he said, “as if before it’s too late”.

He also accused Brexit Secretary David Davis, a campaigner against EU membership, of double standards because as a backbench lawmaker he had sponsored an appeal to the ECJ in 2016 to oppose his own government’s policy on data protection.

And, added General Court President Marc Jaeger, the EU Intellectual Property Office was looking at a request from one enterprising business to trademark the brand “Brexit”.

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