U.K. Judges Still Loved as EU Top Court Chief Laments Brexit

  • EU Court of Justice President says U.K. judges still in demand
  • ‘No’ question of shunning Brits in cases at EU court, he says

They may be headed for the exits, but Britain’s judges are still in demand at the European Union’s top court despite ongoing Brexit negotiations, according to Koen Lenaerts, its president.

Asked whether the EU Court of Justice has started to shun the British judges who work there since Prime Minister Theresa May formalized the U.K.’s intention to leave the 28-nation bloc, Lenaerts said the “answer is absolutely clear: no, we do not take that into account.”

The Belgian said the reverse is true, and that his institution will also miss the quality input from the U.K.’s national courts and judges when referring cases to the Luxembourg-based EU court. “Quality-wise it is a loss, which I publicly regret,” he said at a Brussels event late Wednesday.

Britain’s pro-Brexit camp spent decades accusing the EU court of meddling in national affairs and stealthily awarding itself ever more powers. In the days before Britain’s EU referendum in June, the “Vote Leave” campaign focused attention on cases where the EU court had overruled U.K. laws on emotive issues such as counter-terrorism powers and refugee policy.

Despite its name, the institution is actually made up of two courts: the Court of Justice, the highest in the EU, and the General Court, a lower appeals tribunal.

While the General Court deals with the facts in cases before it, the Court of Justice focuses only on points of law. The top court, which consists of 28 judges and 11 advocates general, handles appeals from the lower court, direct actions against an EU nation, and references from national courts seeking clarification on EU law.

The U.K. has one judge in each court, plus an advocate general whose non-binding opinions often guide the judges in their final decisions. Rulings are binding across the bloc and, as such, U.K. judges, past and present, have helped shape the legislative landscape since their nation joined the bloc in 1973.

Whether the separation from the EU’s court’s power will be a quick process for the U.K. post Brexit “is totally speculative at this stage,” said Lenaerts. It all depends on what will end up being written in the political agreements that will be hashed out over the coming months.

Also, at this stage “it is impossible for anyone of us here to know whether, and if yes, under what procedural angle” cases might be brought to the EU courts after the U.K. has exited from the EU, said Lenaerts.

When political institutions “have done the work, it is possible that there will be a reactive wave of cases brought to us,” he said.

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