European law will apply 'for years' in the UK, says EU judge

Forrester is a member of the General Court, which makes up one of the CJEU's two courts, alongside the European Court of Justice (ECJ)

He spoke to EUobserver in the margins of the Summer School of EU law, organised by Maastricht University in Septfontaines abbey, in Eastern France – a few days after the UK government tabled what it called the Great Repeal Bill.

In a speech to her party conference last year, prime minister Theresa May said that with the bill, "the authority of EU law in this country [will be] ended forever."

'Bath of Britishness'

In reality, judge Forrester said, "the Repeal Bill would bring over the whole mass of European law and re-label it British legislation. Imagine dipping a big tangle of EU wires into a bath of Britishness”.

He pointed out that since the UK entered the EU 44 years ago, "British policy in many fields has been to regulate collectively in conjunction with its EU partners".

"Tens of thousands of these rules", for example on pesticides, dangerous chemicals or animal feed additives, have been elaborated on and adopted at EU level, with UK diplomats fully participating in and influencing their formation.

Until UK agencies are created to replace some or all the 44 EU agencies, he added, "the adaptation of the rules to deal with emergencies, with new products, new problems, will be taken in the context of the EU of 27 and will then – we suppose – automatically apply to the UK."

Taking the example of a new pesticide that the EU has decided to ban, he remarked that "the UK would want to have a view on that pesticide. But until there is a new agency [in the UK], no one is there to take the decision." Presumably, the EU-27 experts will decide.

In addition, in areas such as equal pay, transfer of employment, environmental protection, and access to a profession, UK law is largely built on EU law.

As a consequence, the judge explained, UK courts will continue to apply European law, and "it is highly likely that the interpretations of the EU courts will strongly influence, if not formally bind the approach of UK judges."

Vital EU laws

Forrester also insisted that on justice and home affairs issues – such as child abduction, deportation, arrests across frontiers, wills and inheritance, or international contracts – EU agreements are "vital for daily legal life".

"Leaving them, for example, because they may be interpreted by the ECJ as to British litigation, would be a serious setback for the legitimate goals of government," he said.

In her speech last year, May also promised that UK laws "will be made not in Brussels, but in Westminster" and that "the judges interpreting those laws will sit not in Luxembourg, but in courts in this country."

But last week, EU Brexit negotiator Michel Barnier told the UK government that accepting ECJ's authority "is not a choice, it is an obligation," especially when it comes to guaranteeing citizens' rights.

As part of the "divorce" agreement between the EU and the UK, the British government will have to guarantee rights to the 3.2 million EU citizens that are living in the UK, while correspondingly the EU will guarantee the rights of some 1.2 million UK citizens living in the bloc.

"These individuals will be entitled to certain rights in an ongoing manner which more or less continues existing rights," Forrester said, adding that "we don't know in what terms the UK will extend these rights."

Misunderstanding the ECJ

Judge Forrester, who was appointed to the CJEU in 2015, pointed out that, contrary to a common idea, the court has no jurisdiction "over" the UK as if it were some kind of external force.

"The European Court doesn't act as a prosecutor or a supervisor. It issues decisions that have an influence on legal matters in the UK. It does not have jurisdiction 'in' or 'over' the UK. There is a difference," he explained. It instead "answers questions put to it by national judges."

He said that judges refer cases to the Luxembourg-based court because the question often arises of how a legal text can be applied in a given situation. So an English judge may decide to refer a question to the ECJ of how to interpret an uncertain phrase in a regulation, in order to help the English judge decide on a case.

Disputes will inevitably come up between EU-27 citizens and British local or national authorities "about a detailed question of drafting – whether the rule allows this benefit to be paid or not," he remarked.

"If the national court thinks: 'I'm not sure which way this problem should go,' to whom should the judge put that question?" Forrester asked, suggesting one court which could be consulted would be the European Court of Justice.

He said that "one alternative way would be that the disputes would be settled purely within the UK judicial hierarchy." But he noted that this might "require a new set of arbitral or administrative judicial structures."