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Dec 18
CJEU cases        

Case Number

Case Name

Member State

Subject of Case

Date (decision published)

Summary of Decision

Notes

 Useful links

 

C-340/17

Appeal of Alcohol Countermeasure Systems (International) Inc. against the judgment of the General Court (First Chamber) delivered on 29 March 2017 in Case T-638/15: Alcohol Countermeasure Systems (International) v EUIPO

Spain

Whether a UK earlier trademark right can permit the cancellation of an EU trademark in light of the Brexit process and article 50 of the European Union Treaty notification sent by the United Kingdom.

 

TBC

This is an appeal against a First Chamber decision to cancel an EU trademark in light of a pre-existing UK right (see bottom link for decision).

https://eur-lex.europa.eu/legal-content/en/TXT/PDF/?uri=uriserv%3AOJ.C_.2017.347.01.0003.01.ENG

https://eur-lex.europa.eu/legal-content/en/TXT/PDF/?uri=uriserv%3AOJ.C_.2017.151.01.0033.01.ENG

 

T-458/17

Shindler and Others v Council

Direct action by UK citizens resident in EU27

Annulment of Council Decision of 22 May 2017 to open negotiations with the United Kingdom to withdraw from the EU on the bases of illegality, legal certainty, legitimate expectations, principles of equality and alleged infringement of Article 203 TFEU (based primarily around lack of voting rights for citizens in other EU countries).

26 November 2018

The Court dismissed the action as inadmissible, finding that the decision to open Brexit negotiations does not produce binding legal effects capable of affecting the interests of the applicants by bringing about a distinct change in their legal position.

 

 https://eur-lex.europa.eu/legal-content/EN/TXT/?qid=1543403314135&uri=CELEX:62017TJ0458

 

 

C-661/17

M.A and Others v The International Protection Appeals Tribunal, The Minister for Justice and Equality, Attorney General, Ireland

Ireland

When dealing with a transfer of a protection applicant under regulation 604/2013 to the UK, is a national decision-maker in considering any issues arising in relation to the discretion under art. 17 of the Dublin III Regulation, required to disregard circumstances present at the time in relation to the UK’s withdrawal from the EU?

27 November 2017

TBC

This has been approved for expedition.

 https://eur-lex.europa.eu/legal-content/EN/TXT/?qid=1537265178165&uri=CELEX:62017CN0661

http://curia.europa.eu/juris/document/document.jsf?text=&docid=199004&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=926656

http://curia.europa.eu/juris/document/document.jsf?text=&docid=198182&pageIndex=0&doclang=en&mode=req&dir=&occ=first&part=1

 

C-327/18

Minister for Justice and Equality v R.O

Ireland

Whether an EAW should still be fulfilled in light of the UK’s impending withdrawal from the EU.

19 September 2018

The execution of an EAW from the UK should go ahead just as it would if the UK had not, pursuant to Article 50 TEU, notified the European Council of its intention to leave the EU. 

 

https://www.lexology.com/library/detail.aspx?g=1a6fdafd-45c9-4497-8b51-b2f06cef3979

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A62018CC0327

https://eur-lex.europa.eu/legal-content/EN/TXT/?qid=1537351678647&uri=CELEX:62018CJ0327

 

 

C621/18

Andy Wightman MSP v Secretary of State for Exiting the European Union

UK (Scotland)

Clarification on whether and how the UK’s notification to leave the EU under article 50 of the Treaty on the Functioning of the European Union (TFEU) could be “unilaterally revoked” before the two-year “Brexit” deadline on 29 March 2019, with the effect that the UK would remain in the EU.

10 December 2018

The Court found that it was possible for the to unilaterally revoke Article 50.

 

http://www.scotcourts.gov.uk/docs/default-source/cos-general-docs/pdf-docs-for-opinions/2018csih62.pdf?sfvrsn=0

 

https://www.scottishlegal.com/article/court-of-session-rules-brexit-revocation-question-can-be-referred-to-european-court-of-justice

https://eur-lex.europa.eu/legal-content/EN/TXT/?qid=1544540928944&uri=CELEX:62018CJ0621

 

National cases

 

 

 

 

 

 

 

 

[2018] IESC 47

Minister for Justice and Equality v O’Connor

Ireland

The Irish Supreme Court refused to extradite an EU citizen to the UK, requested under an EAW, on the grounds that the UK will have left the EU by the time he finishes his prison sentence. The requested person had argued that his rights as an EU citizen, surrendered to another EU jurisdiction on the basis of an EAW, would no longer be capable of being enforced post-Brexit under European law. The matter has been referred to the CJEU for decision.

 

IESC judgment made in light of CJEU ruling in the R.O. case.

The government has made much of how the Charter of Fundamental Rights will no longer apply to the UK post-Brexit, but there is a decision of the CJEU – Petruhhin, Case C‑182/15 (see bottom link) – which makes it clear that, when deciding whether to extradite an EU national to a third party state, the provisions of the charter apply. So we will continue to be judged against its provisions, whether we are party to it or not.

 

The case was not fast-tracked by the CJEU as requested by the IESC as O’Connor was not in police custody. See R.O. case for CJEU’s ruling on a similar topic.

 https://www.irishtimes.com/news/crime-and-law/courts/supreme-court/supreme-court-to-finalise-brexit-questions-for-european-court-of-justice-1.3391099

http://www.courts.ie/Judgments.nsf/09859e7a3f34669680256ef3004a27de/e1e1f8b6b0a3d6cc8025822700406ee8?OpenDocument

http://curia.europa.eu/juris/document/document.jsf?text=&docid=183097&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=329513

https://www.irishtimes.com/news/crime-and-law/courts/high-court/court-says-man-facing-extradition-has-not-shown-risk-to-rights-1.3657110

 

N/A

Stephen Huyton

Netherlands

Whether Brexit means that British nationals will automatically lose their EU citizenship and its accompanying rights – and if not, what conditions or limitations will apply to those rights post-Brexit.

N/A

Amsterdam Court of Appeal refused reference to CJEU- although the interpretation of Article 20 was unclear and that there should be a referral to the CJEU, it was necessary to wait until the Brexit negotiations have concluded before making the referral.

Did not reach CJEU but could have serious implications for UK citizens in the EU27, and raises the idea that other Brexit legal challenges could be delayed until next year, so should be noted.

 

The rights of UK citizens will be determined by the WA and future relationship and it is almost certain they will lose their EU citizenship. The CJEU will be the ultimate arbiter re: citizens’ rights.

 https://www.gazetteandherald.co.uk/news/national/15950910.Brexit__Expats____rights_case_goes_to_European_Court_of_Justice/

 

https://www.dw.com/en/dutch-judges-dismiss-uk-expats-post-brexit-rights-case/a-44291758

 

https://www.bureaubrandeis.com/brits-remain-in-limbo-about-eu-citizenship-post-brexit/?lang=en

 

CA 119/17 (Polish Judgment)

MS v District Court Suwalki

Poland

Appeal regarding the decision not to compel a minor to return to the UK as their place of habitual residence under the Convention of the Civil Aspects of International Child Abduction 1980.

24 April 2017

One of the reasons for not returning the minor to the UK was the mother’s uncertain future in the country as a consequence of Brexit.

This hasn’t been referred the CJEU but it is interesting to note nonetheless.