EU can point to clear precedents in Brexit court showdown
🔊 Podcast: An early impasse for the Brexit negotiations
Formal Brexit negotiations have just begun, and already Brussels and London are expressing "fundamental divergence" over the role of the EU Court of Justice in policing citizens' rights in Britain after it leaves the bloc...
23 May 2017. By Matthew Holehouse.
The Brexit negotiations are heading for an early battle.
The remaining EU states on Monday agreed that the rights of EU citizens living in the UK after its withdrawal should fall under the jurisdiction of the EU Court of Justice, or CJEU.
The UK wants to guarantee individuals' rights, but rejects the oversight of the bloc's top-tier court in Luxembourg.
"The simple truth is: we are leaving," Brexit secretary David Davis has said. "We are going to be outside the reach of the European court."
European Commission negotiators will be able to cite previous rulings that have set precedents and conditions for granting the CJEU jurisdiction over non-EU countries.
But such steps are nonetheless unusual — and could take years to approve.
Under the commission's proposals approved by member states, EU citizens in the UK and British citizens in the rest of the bloc will keep their existing rights to healthcare, welfare and equal treatment for life.
The commission's claim that the CJEU should have jurisdiction to enforce these rights is supported by three previous cases.
First, negotiators could point to its 1987 judgment in the case of Meryem Demirel v Stadt Schwabisch Gmund.
Demirel, a Turkish citizen, challenged a deportation order from Germany, citing free-movement rights created by the 1963 EEC-Turkey association agreement. The UK and Germany argued that the CJEU lacked jurisdiction on the issue, as national authorities have to put free-movement agreements into practice.
The judges rejected this, arguing that their job is to uphold the bloc's agreements with foreign states — particularly over free-movement law.
Second was two rulings that centered on the question of whether the CJEU's jurisdiction could extend to a third country — something on which the Demirel case had been silent.
The rulings led to the creation of the EFTA Court under the European Economic Area agreement, which oversees the participation in the single market of European Free Trade Association members Norway, Liechtenstein and Iceland.
At first, the CJEU rejected the proposals (Opinion 1/91) for a standalone court, arguing that it risked creating a divergent body of binding case law, undermining the court's supremacy. But it approved the proposals a year later (Opinion 1/92) following an overhaul.
This created a new mechanism — Article 111 — that allowed a joint committee of EEA and EU governments to refer EFTA Court decisions to the CJEU for a binding adjudication in cases with a risk of divergence. Courts in EEA states could also send questions directly to the CJEU.
This set a clear precedent for the court to have jurisdiction beyond the EU's borders.
Third, the commission could point to Opinion 1/00, where the CJEU approved extending EU air-travel law over 10 eastern European states that planned to join the bloc.
The European Common Aviation Area Agreement created a committee of states that could seek to resolve disputes in line with EU case law or refer them to the CJEU for a "final and binding decision."
The ruling created a two-pronged test for extending EU law beyond the bloc's borders. It is permissible, provided that it does not change the CJEU's "essential character" as a court that issues binding rulings; and that it does not create a rival dispute court that would produce divergent interpretations of EU law.
"The court can be given jurisdiction to rule on disputes about the interpretation of EU 'lookalike' provisions in an international agreement," said Prof Derrick Wyatt, a leading barrister who represented the UK government in the EFTA and aviation decisions.
Furthermore, EU states may submit questions on EU law only to the CJEU. If the regime for citizens' rights is a copy-and-paste of existing EU law, "that rules out referring disputes to a bespoke international tribunal set up under the agreement," Wyatt said.
All of the above cases involved countries that wanted to move closer to the EU. The UK's argument that it cannot be forced under the CJEU's jurisdiction carries some weight.
The UK doesn't want to copy and paste EU citizenship law, but instead create a bespoke series of equivalent rights expressed in British law. Therefore the question of divergence in interpreting EU law simply might not arise.
And despite the clear precedents in case law mentioned above, the basic fact remains that the EU's governing treaties do not envisage the CJEU's writ extending beyond the bloc's borders.
"If you're not a member, you're a third country, and a third country as a matter of principle is not subject to the jurisdiction of the court," CJEU president Koen Lenaerts noted last month. "Then the question is what might be written in political agreements — that is totally speculative at this stage."
Indeed, Article 50, the EU Treaty's exit clause, says nothing about the court.
"There is nothing in the treaties which . . . expressly gives the CJEU jurisdiction in relation to safeguarding EU citizens' rights in an exiting state," notes Konrad Schiemann, a British barrister who served as a judge at the court from 2004 to 2012.
Even if the UK supported the move, it's open to question whether the EU institutions have the power under the treaties to give the court such jurisdiction, Schiemann told MLex.
The EFTA Court cases show a potential for compromise.
While the EU states would have to still answer to the CJEU, the UK could seek to refer questions on citizens' rights to a bespoke tribunal for advisory opinions — much as Norway sends questions on the application of free-movement legislation to the EFTA Court. Such a tribunal would be obliged to mirror the CJEU's case law.
Article 111 of the EEA agreement — which allows cases to be sent to the CJEU to prevent divergences — is effectively ornamental. It has never been used, and would require the consent of all parties. "The EEA agreement does not require the three EFTA countries to refer disputes to the CJEU," notes Wyatt.
Under such a model, Theresa May — if re-elected prime minister next month — could at least claim that the UK would no longer be compelled to submit to the CJEU.
But as we have seen, the CJEU will be keen to approve any innovations in dispute settlement, particularly in a situation as controversial as Brexit.
The process of securing a positive opinion can take years, and the Brexit clock is ticking.
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