It’s been quiet on this blog for some time, but here I go again. The Brexit negotiations have started, and it is becoming clearer by the day that the ECJ’s jurisdiction is a major issue. That is not surpising as the ECJ was always the elephant in the room of the referendum debates. Even if the Court’s role was never properly scrutinised in those debates, Brexiters managed to paint a picture of EU law and its Court ruling supreme. The UK was no longer truly sovereign, UK courts were bound by Luxembourg, and control had to be taken back.
As an EU law “expert” and former employee of the Court (hard Brexiters are allowed to stop reading here), I think it is time to offer a bit more scrutiny. This is the first in a series of blogposts on the ECJ and Brexit. They will have quite a bit of EU law 101, with apologies to the initiated. But it is generally not bad to go back to first principles.
This blogpost focuses on Mrs May red line, first drawn at the Conservative party conference last October: the UK must leave the jurisdiction of the ECJ. But why, and what does leaving the Court’s jurisdiction mean?
At a basic level, Brexit and leaving the ECJ’s jurisdiction are tautological. Brexit means that the UK will no longer be an EU member state and that the EU Treaties will no longer apply to the UK. The ECJ’s jurisdiction is embodied in those Treaties, and does not extend (at least formally – see further below) beyond the member states and the EU institutions. A non-member state is obviously not within the ECJ’s jurisdiction, unless it has an agreement with the EU which provides otherwise.
May’s red line is clearly about more than that mere tautology. But before probing this a little deeper, it may be useful to set out what the ECJ’s “jurisdiction” involves. This may sound surprising, but the Court has no direct jurisdiction in the UK (or any other EU member state). With that I mean that it cannot be directly seized of any disputes arising in the UK, and cannot hear appeals from decisions of UK courts and tribunals. UK cases, be they of a commercial, civil, administrative, employment, immigration, criminal, or any other nature, can be definitively resolved only by the UK judiciary. The ECJ cannot directly rule on any EU rights or obligations arising within the UK’s jurisdiction.
There is however an indirect jurisdiction (contrary to the term “direct” now used by the UK government), and it is a powerful one. Please bear with me for the 101. Any UK court or tribunal may, in a case where EU law is relevant, refer a question of EU law to the ECJ. The Treaties provide for this. What the Treaties do not provide for is that the ECJ’s reply to the question is binding. It is the Court itself that has established the binding nature of its “preliminary rulings”, and member state courts have accepted this. This means that, when the “referring court” receives the ECJ’s reply on the point of EU law, it has to accept it, and incorporate it in its ultimate decision (that is why the ECJ’s ruling is called “preliminary”). The justification for this binding nature of ECJ preliminary rulings is obvious and unassailable: if the rulings were only advisory, the ECJ could not play its central role of ensuring that EU law is applied uniformly and effectively throughout the EU. Imagine that judges, throughout the EU, could do with EU law and ECJ rulings as they please: the EU legal system would completely disintegrate.
Moreover, the potential effect of these ECJ rulings is greatly enhanced by two further, foundational principles of EU law: direct effect and primacy (or supremacy). These have again been created by the Court, and accepted by the member states and their judiciaries. Direct effect means what it says: many rules and provisions of EU law have a direct effect in the laws of the member states. For example, the right to work in another member state is a right which the Treaties confer directly on all EU citizens, and there is no need whatsoever for any national legal act or implementation in order to allow a citizen to benefit from this right. Primacy also means what it says: whenever there is a conflict between the laws of a member state and EU law, it is the latter which must prevail to the extent of the conflict. An EU citizen who exercises her right to work in another member state can rely on the EU law principle of free movement of workers against any member state laws which unlawfully restrict that right. Those laws are not “annulled” or “struck down” – they simply become inapplicable, and member state courts are instructed to give effect to the EU law right.
Direct effect and primacy, combined with the preliminary rulings system, ensure that EU law is respected in all member states. They decentralise the enforcement of EU law: any private party (person or company) who consider that their EU law rights are infringed can use the ordinary courts to obtain redress. It is a system that works well, even if there is an inherent weakness: the ECJ’s involvement depends on the willingness of “domestic” judges to refer cases, as they cannot be forced to do this. But on the whole domestic judges have been very cooperative. In terms of effectiveness the system has been praised as being much stronger than the enforcement of other international treaties, where everything depends on how domestic law gives them effect. For example, the WTO Appellate Body cannot get involved with domestic cases, and does not tell domestic courts how to resolve trade issues – it deals only with cases at the international level, between states (including the EU). So it is clear that the ECJ’s jurisdiction, even if indirect, is intrusive. But this cuts both ways: the UK is bound by the ECJ’s rulings, but UK citizens and companies have been able to have their EU law rights enforced, including in other EU member states.
So what are the objections against the ECJ and its jurisdiction? A standard complaint is that the Court always pushes for more integration, and is too political. That complaint needs to be put into perspective. The ECJ is a genuine court: the judges are independent, and are appointed by the member states – which, believe me, are all keen to ensure that the Court is sufficiently neutral and objective. Nor is the Court a unitary actor. Each judge (and there have been several dozens of them over the last six decades) has an equal voice. A large majority of them have been appointed to the Court coming from national judiciaries. Moreover, they are all keenly aware that the ECJ’s success depends on domestic judges accepting its rulings. So it is not easy to see how the Court could afford, or be inclined, to push excessively for integration, or to be too political. On the other hand, it is of course the case that the Court is instructed to ensure that EU law – the EU Treaties and legislation – are observed. But the Treaties are negotiated by the member states, agreeing unanimously, and no EU legislation can be adopted without a substantial (“qualified”) majority of member state governments being in favour.
Be that as it may, it is legitimate for people to have different views about this, and for the Brexiters to be against the ECJ’s integrationist tendencies. But of course that is no longer the issue. Once the UK is out of the EU, it will no longer be bound by the EU Treaties, and is no longer on an integrationist trajectory. It is critical to distinguish this from an uncrossable red line which would mean that the UK has no more business whatsoever with the ECJ. The latter position amounts to the hardest Brexits of all, and is wholly unworkable.
For a start, the idea that EU law – and the ECJ’s case law – will no longer apply in the UK at all is not within the UK government’s control. It is obvious that companies exporting goods or services to the EU market will need to continue to comply with EU regulations and standards. This is the so-called Brussels Effect (a term coined by Anu Bradford of Columbia University, by analogy with the California Effect). Given the size of the EU market, many business will choose to comply with EU standards – and will lobby the UK government for not diverging from those standards.
But there is more. In a globalized world and market, the EU is keen to have some of its regulations also formally observed by non-EU states, quite simply because borders are porous or even meaningless. The best example is the protection of personal data. The EU has very stringent regulations in this field, which govern cross-border data transfers. The EU requires equivalence in data protection for data transfers to non-EU countries, and with the ubiquity of the internet this means that even the US is required to offer such equivalence. It is wholly unrealistic to suppose that the UK will have any choice but to accept the EU’s equivalence demands, which are ultimately determined by the ECJ.
And there is more. The EU is very much a rules-based system, with the ECJ at its legal apex. Whether one likes it or not, the Court is keen to ensure that it remains there, and that it has full and final authority to rule on matters of EU law. This is really important for any form of Brexit of the more or less softer nature. A mere trade agreement between the UK and the EU could easily be subject to an intergovernmental dispute settlement system, with for example arbitration panels deciding cases. This is the model of CETA with Canada (even if the EU is keen to establish a new international court for dealing with investment disputes). But such a mere trade agreement would mean that so much of the current cooperative arrangements between the UK and other EU member states, in economic as well as non-economic fields, are lost. A quick, very incomplete list:
- Rights to fly freely in the European “open skies” aviation market
- Passporting, or equivalence in financial regulation
- Cooperation in criminal matters, such as the European Arrest Warrant
- Recognition of judgments in civil and commercial matters (a huge issue for a legal system which prides itself of being the place to go for international commercial contracts)
- Euratom and the movement of nuclear material
- International sanctions (terrorism and regime sanctions)
There are many signs (not least the latest batch of UK position papers) wich suggest that the UK is keen to maintain as much as possible of those cooperative arrangements, which are embedded in EU law. However, as soon as an international agreement which the EU concludes replicates provisions of EU law, the ECJ insists that it should have ultimate jurisdiction. The idea that the EU will be willing to accept a dispute resolution system for a “deep and comprehensive” agreement with the UK which aims to replicate many current arrangements, without insisting on a very strong role for the ECJ, is a fantasy. And this is a matter of law as much as politics. The ECJ insists on the “autonomy” of EU law being safeguarded in any dispute settlement arrangements. It has the tools to enforce this, particularly as any “envisaged” agreement can be made subject to ECJ review on the mere request of any member state or EU institution. In recent years it is becoming established practice that any controversial agreements are first put to the Court. There is no reason to expect that this will not be the fate of the Article 50 withdrawal agreement, or of a future deep and comprehensive agreement.
More on this later. For now I will simply conclude (1) that the UK had better not antagonise the ECJ too much, if it really wants to continue to cooperate with the EU, and (2) that one wonders how much is gained by formally leaving the Court’s jurisdiction.