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You can find the current article at its original source at https://www.theguardian.com/world/2017/aug/19/ecj-farewell-brexit-european-union-surrendering-influence
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| Farewell to the ECJ? We may end up obeying laws but having no say in them | Farewell to the ECJ? We may end up obeying laws but having no say in them |
| (4 days later) | |
| Why exactly is the European court of justice (ECJ) the subject of such unrelenting vilification by the Brexiters? To lawyers familiar with the court’s judgments, this has always been something of a mystery. | Why exactly is the European court of justice (ECJ) the subject of such unrelenting vilification by the Brexiters? To lawyers familiar with the court’s judgments, this has always been something of a mystery. |
| This is, after all, the court that ruled that the European Central Bank was wrong to insist that euro clearing houses should be based in the eurozone. A triumph for the City of London. | This is, after all, the court that ruled that the European Central Bank was wrong to insist that euro clearing houses should be based in the eurozone. A triumph for the City of London. |
| It is also the ECJ that not only upholds the rules of the game by ensuring that Italians, Poles and Greeks respect EU rules but also strikes down decisions of the EU legislature which go too far. | It is also the ECJ that not only upholds the rules of the game by ensuring that Italians, Poles and Greeks respect EU rules but also strikes down decisions of the EU legislature which go too far. |
| Surely it cannot be that some Brexiters continue to confuse the Luxembourg court with its neighbour, the Strasbourg-based European court of human rights? It is the Strasbourg court, not the Luxembourg one, which has ruled on prisoners’ voting rights and which threw obstacles in the path of Britain’s protracted efforts to deport Abu Qatada. | Surely it cannot be that some Brexiters continue to confuse the Luxembourg court with its neighbour, the Strasbourg-based European court of human rights? It is the Strasbourg court, not the Luxembourg one, which has ruled on prisoners’ voting rights and which threw obstacles in the path of Britain’s protracted efforts to deport Abu Qatada. |
| Others suggest it is the sovereignty-limiting implications of having a non-UK court telling the British courts what to do. But they miss the point. In these cases, known in the jargon as article 267 preliminary references, the ECJ interprets the meaning of EU law; the UK courts apply that interpretation to the facts – a straightforward division of responsibilities. Nevertheless, goes the cry, we’re leaving the EU and good riddance to the ECJ. But not so fast. | Others suggest it is the sovereignty-limiting implications of having a non-UK court telling the British courts what to do. But they miss the point. In these cases, known in the jargon as article 267 preliminary references, the ECJ interprets the meaning of EU law; the UK courts apply that interpretation to the facts – a straightforward division of responsibilities. Nevertheless, goes the cry, we’re leaving the EU and good riddance to the ECJ. But not so fast. |
| Think this one through. Imagine that a trade deal with the US forces the UK to accept that chlorine-washed chicken – currently banned throughout the EU – can enter its market. The “frictionless border’ between the north and south of Ireland proves porous, and chlorine-washed chicken starts showing up in Dublin. Action could be taken against Ireland, yes, but the EU commission may want to take action against the UK too for being in breach of a future UK/EU free trade agreement (FTA), which Theresa May will seek. The FTA may provide for a political dispute settlement mechanism, as in the case of the EU/Swiss veterinary agreement, but the EU doesn’t like this arrangement and is pushing for more general ECJ oversight of the Swiss deal. This may be the EU’s price for the UK to retain a close relationhip with the customs union and the single market. | Think this one through. Imagine that a trade deal with the US forces the UK to accept that chlorine-washed chicken – currently banned throughout the EU – can enter its market. The “frictionless border’ between the north and south of Ireland proves porous, and chlorine-washed chicken starts showing up in Dublin. Action could be taken against Ireland, yes, but the EU commission may want to take action against the UK too for being in breach of a future UK/EU free trade agreement (FTA), which Theresa May will seek. The FTA may provide for a political dispute settlement mechanism, as in the case of the EU/Swiss veterinary agreement, but the EU doesn’t like this arrangement and is pushing for more general ECJ oversight of the Swiss deal. This may be the EU’s price for the UK to retain a close relationhip with the customs union and the single market. |
| Even if the EU/UK can overcome this problem, given the proximity of the UK’s customs union with the EU’s own customs union, any judgments of the ECJ on the EU’s customs union will in fact put British courts under a particularly strong obligation to interpret UK law in the light of those judgments post Brexit, | Even if the EU/UK can overcome this problem, given the proximity of the UK’s customs union with the EU’s own customs union, any judgments of the ECJ on the EU’s customs union will in fact put British courts under a particularly strong obligation to interpret UK law in the light of those judgments post Brexit, |
| And any future ECJ judgments will be drafted without the benefit of British judges sitting on the bench and without the benefit of hearing British lawyers arguing the case. Careful study of past ECJ decisions clearly shows the UK has punched above its weight in getting its points across. Such influence will be surrendered as Brexit becomes reality. But escaping the ECJ’s jurisdiction may be neither easy nor, in fact possible. | And any future ECJ judgments will be drafted without the benefit of British judges sitting on the bench and without the benefit of hearing British lawyers arguing the case. Careful study of past ECJ decisions clearly shows the UK has punched above its weight in getting its points across. Such influence will be surrendered as Brexit becomes reality. But escaping the ECJ’s jurisdiction may be neither easy nor, in fact possible. |
| Catherine Barnard is professor of EU law at Trinity College, Cambridge | Catherine Barnard is professor of EU law at Trinity College, Cambridge |