What is the European court of justice and why does it matter?
What is the CJEC and why is it such a problem?
The European Court of Justice of the European Union is the highest court in Europe. Judges’ groups in the Member States feel they have to interpret whether EU law is applied fairly and can issue binding decisions in relation to national jurisdictions.
The ECJ had a relatively benign history with the United Kingdom – unlike the more contentious European human rights jurisdiction in Strasbourg – but nevertheless became a symbol of compromised sovereignty in the Brexit referendum. The EU insisted that all future agreements on citizens’ rights and access to the single market should continue to be monitored by the ECJ.
How does the UK want to get out?
Like its plan to retain the benefits of customs union or judicial cooperation in civil matters, the government hopes to tackle the problem by formally departing from the existing arrangement, but recreating a very similar one in the future.
You could call a court, a committee or even a court. They could be judges from Great Britain and the EU, and it could have the power to issue decisions that are at odds with the British courts.
However, since these decisions should be taken into account by Parliament rather than automatically replace the British judges, it would have only an “indirect” jurisdiction. The United Kingdom could refuse to comply, but it would face retaliation sanctions or risk that the whole divorce agreement would collapse. The only realistic option to challenge future decisions might be to go completely – a bit like Brexit was supposed to be.
How did it work for other countries?
The United Kingdom has set out a series of precedents in its guidance document to demonstrate that it is not necessary for a third country, such as Great Britain Post-Brexit, to submit to the A foreign court to strike international operations agreements.
While alternative arbitration mechanisms have worked well in the case of limited trade agreements such as those between the EU and Canada or Singapore, they all involve a sovereign compromise to operate.
Wider agreements, such as those with members of the European Economic Area and the European Free Trade Association (Efta), such as Norway or putative EU members such as Moldova, have Tendency to have an explicit mechanism for the ECJ to intervene.
Brexiters is dismayed by the British example of Moldova because it requires an arbitration panel to refer issues of EU legislation to the ECJ and “be bound by its interpretation”.
Should survivors be alarmed by signs of compromise?
If you believe that Brexit could involve Britain having all the benefits of EU membership without any legal liability, these last few weeks have been opened.
If you think that the JJCE is an effective bulwark to protect citizens’ rights and works well with national courts, this turn may be less threatening ….