Tuesday

9th Aug 2022

UK seeks to end 'direct' rule of EU court

  • UK said there was no precedent for ECJ's "direct jurisdiction" over a non-EU state (Photo: Court of Justice of the European Union)

The UK is preparing to say that a new set of tribunals should enforce EU law after Brexit instead of the EU’s Court of Justice (ECJ).

“We have long been clear that in leaving the EU we will bring an ​end to the direct jurisdiction of the Court of Justice of the European Union in the UK,” the British government said in a statement on Tuesday (22 August), ahead of its publication of a more detailed paper on the issue on Wednesday.

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The statement said there was “no precedent” for ECJ authority over a non-EU country.

It added that it was “in everyone’s interest that, where disputes arise between the UK and the EU on the application or interpretation of … [mutual] obligations, those disputes can be resolved efficiently and effectively”.

But it listed other forms of dispute settlement tribunal as potential models instead of the ECJ.

These included the World Trade Organisation, a court in the Canada-EU trade treaty, and the tribunal that governed EFTA, a European free trade club.

Speaking to the BBC on Wednesday, Britain's deputy justice chief Dominic Raab said the “most likely” model would be a special Brexit arbitrator that involved EU and UK appointees.

The British government also said different types of court could be used in different legal areas.

The tribunals would govern issues as diverse as bilateral trade and EU and UK citizens’ rights.

The British statement noted that in the international arena “the exact form of enforcement and dispute resolution is often tailored to the content of the agreement and varies across different issues such as trade or security”.

Wednesday’s paper will be the latest in a series of British publications of Brexit proposals.

The position papers - on customs, the Irish border, product certification, commercial and civil disputes, and exchange of EU documents - come ahead of the next round of EU exit talks on 28 August.

British vow

The tone of Tuesday’s statement on the ECJ was softer than previous British rhetoric.

“It is in the interests of both the UK and the EU, and of our citizens and businesses, that the rights and obligations agreed between us can be relied upon and enforced in appropriate ways,” the statement said.

Its reference to ending the “direct” jurisdiction of the ECJ prompted speculation that EU judges would retain indirect authority.

Raab, the British deputy chief justice, tried to quash that notion.

“We’re taking back control over our laws,” he told the BBC.

He added, however, that “as we take back control, it makes sense for the UK to keep half an eye on the case law of the EU, and for the EU to keep half an eye on the case law of the UK.”

British prime minister Theresa May vowed to end ECJ authority in a speech on Brexit last year.

“We are not leaving [the EU] only to return to the jurisdiction of the European Court of Justice - that’s not going to happen,” she said.

Cart before horse

The British position papers have called for “frictionless” EU customs arrangements, “no physical border” with Ireland, and “free circulation” of UK-certified products in the EU.

They have also said the UK would recognise national court rulings in EU states on cross-border commercial and civil disputes.

The proposals were dubbed “confusing” and “unrealistic” by Ireland and called a “fantasy” by one EU politician.

The European Union has said “sufficient progress” must be made in talks on citizens’ rights, the Irish border, and the UK’s financial obligations to the EU before commencing talks on trade.

The prospect of not reaching a deal before the UK left the EU in March 2019 has spooked industry.

The British aviation sector was the latest to warn that a legal vacuum in British-EU relations threatened to cause havoc.

Passenger flight bookings could fall by 41 percent or as many as 8 million travellers in 2019 if people were not confident that their journeys would go smoothly, a report by a British consultancy said on Tuesday.

“Although an 11th-hour deal may prevent planes from being grounded, damage to the aviation industry and the wider economy would have already been done,” the report, by WPI Economics for the owners of Manchester, Stansted, Heathrow, Gatwick, and London City airports in the UK, said.

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