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Britain the new Norway? Stance on ECJ suggests London seeks softer Brexit

UK is entitled to defend the exclusive jurisdiction of its courts even when it comes to the EU law

Alfonso Valero | The Conversation 


The British government has outlined its vision for what role the European Court of Justice will play after As speculated, its position papers outlining this vision state that it wants to end the ECJ’s “direct jurisdiction” in the

But the papers seem to indicate that the is seeking a Norway-style Brexit, effectively remaining in the European Economic Area in the interim.

The government has put forward its position in two papers. The first deals somewhat indirectly with the issue of the jurisdiction of the in relation to interpretation of EU law. The wants ECJ’s decisions to no longer be binding.

But what’s really interesting is that the expresses the intention of being part of the Lugano Convention – the rules on jurisdictional matters that apply to EEA states. This is a strong indication that the is eyeing a Norway-style

The second paper adds more weight to this hypothesis. The apparent position of the government is that the will maintain its interpretative jurisdiction within the EU area and that there is no real need for the to act as a dispute resolution mechanism in the eventual trade agreement between and the EU. This is what it means by ending its “direct” jurisdiction.

However, the paper does seem to imply that the now accepts that the will have to continue ruling in cases where the new law affecting both the and the EU is essentially the same as EU law. This is what happens with the EEA, which has its own court. But ultimately the rulings of the ECJ are binding there.

The position of the European Union

According to Michel Barnier, chief negotiator for the European Commission, the EU’s position on this matter has never changed.

It believes the must remain the main arbitrator and enforcer of the obligations both sides have towards each other. The would retain its jurisdiction to interpret and force compliance of EU law that may still be applicable after the effective date of Moreover, the would be the court to go to if a disagreement between the and the EU arose.

When it comes to applying EU law, it makes sense that the EU should maintain its interpretative role. EU law would apply to people and businesses wanting to trade with the EU.

On the other hand, the is perfectly entitled to defend the exclusive jurisdiction of its courts to matters affecting residents (people and businesses) even when it comes to how EU law is interpreted.

Making a deal

It’s important to remember that neither side of this negotiation know what their post-relationship will look like. That matters because, ultimately, when we talk about the European Court of Justice, we are simply talking about a dispute resolution mechanism to deal with two types of disagreements: between the parties to the trade agreement (probably the and the EU) and between parties subject to the law (such as a business and a German business or consumer).

When a trade agreement is signed between two parties, they will, at the same time, normally decide a method through which they will resolve potential disputes and interpret the new law which will develop as a consequence of the agreement.

When it comes to the EU’s dealings, both these roles are fulfilled by the It adjudicates disputes when member states are suspected of infringing EU law (such as failing to enforce tax regimes) and interprets the law when national courts ask it do so (e.g. on issues such as consumer rights, data protection or employee rights).

The distinction is important because the seems to accept that the must adjudicate, but is less willing to allow it to overrule British courts when it comes to questions of how to interpret the law.

The sticking point is, in reality, the dispute resolution mechanism for the withdrawal agreement. The EU is certainly betting on a more traditional approach – i.e. using the to interpret the agreement. The negotiating seems to be hoping for an alternative system (mediation or arbitration), but since the EU’s position has been approved by the member states, a change in that proposal would have to be approved again – and that’s not always a walk in the park.

Other trade agreements entered into by the EU have considered a dispute resolution mechanism which did not include the (for example, Canada), but the maintains its role in the interpretation of the new law that may develop as a consequence of that trade agreement (the interpretative hat mentioned above).

The Conversation

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David Davies seems to understand this. That’s why it looks as though the is working towards a Norway-style – a return to the EEA, subject to the EFTA court, and maintaining a less obvious submission to the court. 

Alfonso Valero, Principal Lecturer, College of Business Law & Social Sciences, Nottingham Law School, Nottingham Trent University

This article was originally published on The Conversation. Read the original article.

First Published: Thu, August 24 2017. 10:19 IST