Could the EU’s Court of Justice force the Brexit bill to be amended or revised?

It is assumed that as a result of the comfortable majority that Boris Johnson has obtained in the Commons that the prime minister’s withdrawal agreement will now be very easy to push through the British Parliament. However, Article 218(11) of the Treaty on the Functioning of the European Union (TFEU) states: “A Member State, the European Parliament, the Council or the Commission may obtain the opinion of the Court of Justice as to whether an agreement envisaged is compatible with the Treaties. Where the opinion of the Court is adverse, the agreement envisaged may not enter into force unless it is amended, or the Treaties are revised.”

Whilst currently no Member State, none of the institutions included in this provision has expressed their intention to seek the opinion of the Court. Could this be a further means of stopping Britain leaving the EU? Some think so! Once the Brexit agreement comes into force it will become part of EU Law. In doing this it becomes open to legal challenges, the same way any piece of EU legislation is. Sebastian Platon of the University of Bordeaux sees it as a possibility. He has stated “one cannot dismiss the possibility of such a legal challenge. Think, for example, of unionists in Northern Ireland who would be displeased by the establishment of customs checks on goods between Northern Ireland and Great Britain, as a consequence of the agreement. Think of employees of a company in the EU made redundant by their employer because their company has decided to relocate their operation in Northern Ireland”. 

Should this occur, the question would then turn to how the court likely rule would. Whilst no one can be sure especially as there is no precedent. Again, Mr Platon has thoughts on this. He states there “might be arguable points. For example, can’t we consider that the purpose of Article 50 TEU is only to make transitory arrangements aimed at mitigating the impact of the withdrawal? It could be argued that the light procedure laid down for the approval of the withdrawal agreement (the Council voting at qualified majority, no national ratifications) is only consistent with temporary measures. If this is the case, the Court might find it difficult to reconcile certain provisions of the agreement with this purpose, for example, the fact that citizens’ rights will be guaranteed for the lifetime of said citizens, or the fact that the “backstop” for Northern Ireland may be applicable forever. Again, I am not saying that the withdrawal agreement is illegal, just that nobody can say for sure that it is legal.” Is Brexit really a done deal?