Brexit, sovereignty and the EU Court of Justice

It has been a momentous couple of weeks for Brexit, with the European Council settlement, the announcement of the referendum date, the Cameron-Johnson tussle, and the questions about the legally binding nature of the settlement. On this last point, nearly everything sensible and non-sensible has been said. Of course the settlement is binding, but it has different parts, most of which require further legislative action, either at Treaty level or by way of amending EU “secondary” legislation (which is really not secondary). This is in the very nature of the settlement, as it is prospective: it sets out what the UK will achieve if the referendum outcome is “remain”. But that there is a legally binding commitment, entered into by the 28 states that make up the EU, and which is taken very seriously by them, is beyond all reasonable and unreasonable doubt.

It was mainly comments by Mr Gove, in a BBC interview, which catapulted the “legally binding” question to the media forefront. But this also connects with Boris Johnson’s preference for sovereignty – UK parliamentary sovereignty – over being bound by EU law. I looked at the Gove interview, and found that his comments were actually very measured, in the face of rather aggressive questioning. There was however one line, which he kept on repeating, which paints a false picture. He insisted that as long as the EU Treaties were not amended, the EU Court of Justice could step in, because it stands above the nation states. I think the Court is the elephant in the Westminster rooms, and perhaps also in the wider Brexit debate. The trouble with making sense of what the Court is, and what it is not, is that it requires quite a bit of knowledge of its case law, and of how EU law works. But let me nevertheless try to bring across some basic points.

It is a misrepresentation to say that the Court is supreme over the EU member states. What the Court does is to interpret, authoritatively, EU law, and to require member States to comply with EU law. If anything is supreme, it is EU law, not the Court. And EU law is made by the member states, which have drafted the EU Treaties, and a majority of which need to consent to new EU legislation in the Council of Ministers.

Now it is true that the Court has said that the supremacy of EU law is an inherent feature of the Treaties. But again a lot of care is required with the use of terms. I personally don’t like the term supremacy, even if it is often used, also in the expert literature. I prefer the term primacy, which more adequately reflects the effect of EU law. Primacy means that in the event of a conflict between EU law and the laws of a member state it is EU law which needs to be respected; conflicting national law must be “disapplied”. This is the Court’s instruction to courts in the member states dealing with EU law issues. Primacy is a conflict rule. It does not establish an overall “supremacy” of EU law.

But I can already see the eye-brows of critical readers being raised. What is really the difference in these terms? Are you not simply confirming that EU law – and the Court interpreting it – are supreme, and that national sovereignty has gone out of the window? Before we take a further look at how all of this works, let me make a bit of a case for the defence of EU law primacy. It is, at heart, a rule-of-law and contractual matter. The EU is not about mere political cooperation. It is about making binding agreements on matters of common interest. For those agreements to stick, they must have the force of law. Every member state has an interest in the effectiveness of EU law, but I should think the UK’s interest in ensuring that EU law is respected is even greater than that of some other member states. If anything, the rule of law is taken seriously in the UK, and a complex and far-reaching venture such as creating an EU internal market – to name the EU’s most significant policy – could never work without respect for EU law. The UK – UK companies, the government, and UK lawyers – have been at the forefront of much EU law litigation, and London is a centre of EU law practice. This has all been much to the benefit of the UK’s free trade and internal market agenda. And it will be clear to all that the often advocated position that the UK Parliament should be able to decide, case by case, which EU laws apply in the UK cannot work at all. If all member states adopted such a position, there would be no EU law left worthy of that name. Any agreement in Brussels would immediately unravel.

The next point is that the EU Court may well say that primacy is inherent in EU law, but that is not the position under UK law – or indeed under the laws of about any other member state. Under UK law it is the European Communities Act 1972 which proclaims and establishes the force of EU law. This is the core sovereignty point. As my columnist hero Philip Stephens points out in the FT, Parliament can at any time amend or revoke this Act, and throw EU law primacy out of the window. Of course, in the absence of a withdrawal from the EU such a revocation of primacy would create a membership crisis, precisely because membership cannot work without respect for EU law. But is that not simply a normal club membership issue?

So the EU could not work well without the primacy of its laws. Now it is the case that the EU Court is the ultimate interpreter of EU law, and that it is at times activist and creative, particularly when it comes to the interpretation of the founding Treaties. Criticisms of this activism are a current staple of EU law academic commentary, and flare up with reassuring regularity. But a large majority of court-watchers also agree that the Court is not unchecked. Its case law can only work if courts in the member states accept and implement it. There is a well-established judicial dialogue, particularly between supreme and constitutional courts, and the Court of Justice. The German Constitutional Court has been something of a protagonist, but the UK Supreme Court has also been an effective interlocutor. The other point is that the Court of Justice is generally sensitive to the political times, as a supreme court should be. A recent example is the case law on EU citizenship, where in the last couple of years the Court has become more conservative, for example in the area of …, yes, social benefits for EU citizens.

My last point, and perhaps the most significant one. If I were asked how often EU law has prevailed over primary legislation enacted by the UK Parliament, in the course of the UK’s EU membership, I would struggle to come up with even a handful of cases. The best known case is Factortame, more than 25 years ago, where the UK courts accepted that an act of Parliament discriminating against Spanish fishermen had to be disapplied. That is about as significant as it ever got. I would really challenge those arguing that EU law, or the Court’s supremacy are intolerable to come up with specific examples of where and how EU law interferes with significant UK primary legislation. The list will be very short.

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