Yesterday the BAB Policy Group held a Briefing on the European Court of Justice to discuss the future role of the Court in the wake of the United Kingdom’s vote to leave the European Union. We were delighted to welcome the following three speakers for this Briefing:
Vassilis Akriditis, Partner, McGuideWoods LLP (Brussels)
Dr Davor Jancic, Lecturer in EU Law, Queen Mary School of Law
Jacqueline Minor, Former Head of Representations to the EU Commission to the UK, 2013-2017
Below is a summary from the event.
The United Kingdom (UK) stated its aim to remove itself from the European Court of Justice (ECJ)’s jurisdiction. This BAB Policy Group Briefing explored the role of the ECJ, feasibility and implications of a removal in the context of Brexit.
The present activities and scope of the ECJ
Established in 1952, the European Court of Justice (ECJ) interprets the meaning of EU law and make rulings on whether EU treaties and legislation are correctly implemented by the Member States of the European Union (EU). Referrals and preliminary rulings take up the majority of the court’s docket. EU law overrides UK law.
Leaving the jurisdiction of the ECJ
The scale of the ECJ’s jurisdiction post-Brexit depends on the terms of withdrawal. Certain rights of EU citizens residing in the UK, for example, eg social security, would continue to be under jurisdiction of the ECJ. It is also likely that the EU will ask for jurisdiction over any transitional period following the two-year negotiation period. Following that, the UK and EU will have to have to go through a complex adjustment process, including the discussion around a UK-EU trade dispute settlement mechanism.
The ECJ’s role in the withdrawal agreement and future UK-EU relationship
Importantly, the ECJ can and is likely to play a role in the withdrawal process itself, as well as in the future UK-EU relationship. The ECJ can give an opinion on whether the withdrawal agreement violates EU Law or citizens’ rights if a case is raised by a national court, citizen or company. The European Parliament, the Council or Commission could also ask the ECJ to decide whether an UK-EU withdrawal agreement violates EU treaties. If the ECJ found the agreement to be in breach of EU law, the agreement would have to be amended, causing further delay.
First, removing the UK from EJC jurisdiction is complex and is likely to take much longer than the two-year Brexit negotiation period. Second, the UK will lose its influence in the Court, while ECJ jurisdiction will continue in the UK on certain issues. Third, it seems likely that the UK will have to seek staying in line with ECJ jurisdiction, particularly on trade-related issued, through mutual recognition; something business should strongly advocate for.
For more information about the BAB Policy Group please contact Policy Manager Theo Bachrach.