The Scotland Court of Session on Tuesday rejected a petition from a group of individuals from the Scotland and EU parliaments asking the court to make a preliminary reference to the European Court of Justice (ECJ) on the question of whether the UK can unilaterally stop the Brexit process by withdrawing the notification under Article 50(2) of the Treaty on European Union (TEU) before March 29, 2019.
The preliminary reference procedure is made under Article 267 of the Treaty on the Functioning of EU(TFEU) , which permits national courts of EU member states to refer questions concerning the interpretation EU law to the ECJ. Unlike an appeals procedure, the discretion of whether to refer a court to the ECJ lies entirely with the member state national court, as opposed to the parties in dispute, under this provision. In this case, the concerned EU law is Article 50(2).
Should the Court of Session make such a reference, the parties requested the initiation of ECJ’s expedited procedure to decide the question. Webster Johnston, of the Office of the Advocate General of Scotland, stating that “the firm policy of the Government is that the notification under Article 50(2) will not be withdrawn,” maintained his position that there is no genuine dispute in this matter for the ECJ to adjudicate and the Court of Session should not entertain any request for a reference. Johnston further argued that any question on the proper interpretation of Article 50(2) is in any event time barred because the petitioners did not make the request within three months of the notification.
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