Should Theresa May take Donald Trump’s advice and sue the EU over Brexit? A legal expert explains

British Prime Minister Theresa May revealed that US President Donald Trump’s advice on Brexit was to stop negotiating and sue the EU. This prompted immediate furore among political commentators and a lot of eye-rolling from the legal community.

But could and should the British government sue the EU?

There are four fundamental parts to any legal action: who is suing, who they are suing, where they are suing, and what they are asking for. Trump’s suggestion is that May, in her capacity as prime minister, should initiate action by the UK government against the EU. We know who is doing the suing then: the UK in its sovereign capacity.

Who is it suing? The suggestion is that it sues the European Union as a separate legal body, akin to a sovereign state. States can sue each other – they do it all the time. For example, when Iceland (the country) held a referendum, which rejected a repayment plan for foreign depositors in its failed banks, the UK proceeded to sue to recover the money lost by British depositors. The case took place in the European Free Trade Agreement (EFTA) Court and the UK eventually lost.

Britain had better luck when it was sued, unsuccessfully, by relatives of the Argentinian sailors killed when the cruiser General Belgrano was sunk by a British submarine during the Falklands war. The case went to the European Court of Human Rights. States are also continually sued in national courts for commercial dealings gone wrong.

As the cases above show, where to sue is far from obvious. National courts can only be used against the state, either challenging its commercial activities or seeking the proper application of its own laws in administrative matters. National courts do not normally have jurisdiction over foreign entities outside their national space, never mind states exercising their sovereign authority.

For a court or tribunal to judge the behaviour of a state outside one’s own jurisdiction they need to be set up and backed up by the force of international law, usually through some kind of treaty structure. To return to the above examples, the EFTA Court and the European Court of Human Rights are built on treaties, of which the UK is a signatory. Alternatively, states can be sued through the investment court system, which is again built on treaties.

‘I told her to sue 'em.’ Stefan Rousseau/PA Wire/PA Images

Were the UK to sue the EU, it would therefore need to pick some international forum to do so, and choosing one will depend on the fourth aspect of a legal action: what are they asking for? Here is where Trump’s logic becomes obscure. Were May to stop negotiating and sue the EU, what would it be for?

Historical precedent

To answer this, we can consider some examples of others who have sued the EU over the last few years. Top of the list of anti-EU litigants are those adversely affected by the financial crisis in Europe between 2010 and 2015. People suffering the negative impact of austerity policies, which came with the EU’s bailouts, have been looking for legal redress for years.

All three levels of legal action have been tried: national, international and supranational. The national route has met with limited success for specific categories of workers, usually protesting changes in employment rights (for example, labour law reforms in Greece).

The international route has resulted in no successes, even though a number of applicants have tried to argue property rights violations at the European Court of Human Rights and attempted to bring claims all the way to the European Court of Justice. Those that presented their cases, failed.

The supranational route has been more fruitful for some, but is only open to foreign investors. For example, investors in renewable energy generation have met with partial success in claiming compensation from Spain, after it eliminated electricity subsidies.

If May focuses on the adverse economic impacts of Brexit – allegedly brought about by the EU’s tough negotiating stance – perhaps through trade disruption or the impact on services, she will be making similar claims to those who sued Brussels for the economic costs of the disruption brought by the bailouts that came with austerity conditions – so the international route.

This trajectory, however, (and it is difficult to see anything else that might allow the government to sue the EU) would land May in the European Court of Justice, the very institution she has vowed to distance the UK from. And, following a steady stream of disappointed claimants, she would surely lose. In the same way that austerity was mandated by the EU, but implemented by national governments, the loss of rights that comes with leaving the EU is at the request and initiative of the UK. This is not a winning recipe for legal action.

So if the UK decides to take Trump’s advice and sue the EU, it could do it, but it would end up at the EU’s court, claiming redress for losses that are the consequences of the May government’s own decisions. This would give it next to no chance of success. In all probability, therefore, May should be weary of taking Trump’s advice on anything regarding the law. If anything, she should worry about others suing the UK for her handling of Brexit.