Why EU Court of Justice Is a Key Brexit Battleground

The European Union’s highest court, the Court of Justice of the EU, is one of Brexit’s hottest topics. The question over what future role it might play in the U.K. has made negotiators on both sides dig in their heels, and talks are now almost at an impasse. The EU insists the court has a crucial role to play in protecting the rights of European citizens living and working in Britain after the U.K.’s withdrawal. Brexit’s champions say regaining sovereignty means removing the U.K. from meddling by EU judges.

1. What is the Court of Justice of the EU?

Despite its name, the Luxembourg-based institution is actually made up of two courts: the Court of Justice, the highest in the EU, and the General Court, a lower tribunal. While the General Court deals with the facts in cases before it, the Court of Justice focuses only on points of law. The Court of Justice consists of 28 judges and 11 advocates general and handles appeals from the lower court, direct actions against an EU nation, and references from national courts seeking clarification on EU law. Rulings are binding across the bloc.

2. How powerful are the EU judges?

Their judgments are binding on all 28 EU nations -- including the U.K., at least for now -- and national courts must abide by the guidance and decisions handed out. This has irked some nations in the past, not only the U.K., but also Germany. The two courts have the final say over any EU-related matters. This includes appeals of decisions by the European Commission and the European Central Bank, and lawsuits for violating the bloc’s rules brought by the Brussels-based commission, the EU’s executive agency that also employs the bloc’s chief negotiator, Michel Barnier.

3. Is the U.K. represented?

Yes. Since joining the EU in 1973 it’s had one judge on each court, plus an advocate general, whose non-binding opinions often guide the judges in their final decisions.

4. What does the U.K. want?

Prime Minister Theresa May has promised to remove the nation from the jurisdiction of the court. It’s emerged as one of the U.K.’s red lines, along with getting more control of freedom of movement. May “made it a central plank of what Brexit means in her sale of Brexit,” said Charles Brasted, a London-based lawyer at Hogan Lovells LLP. Brexiters see the “expansionist role of the EU court as having been of a vanguard of reducing national sovereignty by expanding the scope of EU law.”

5. Is there room for compromise?

There could be. One idea floated by May’s government is to set up a new court with U.K. and EU judges to settle future disputes. It’s unclear how far-reaching a new institution’s powers would be. For example, would it be limited to settling EU-U.K. legal disputes? Or would it have the ability to step into the U.K.’s legal system? The same issues arise concerning any future role of the existing EU court system.

6. Does this have to be settled now?

Getting clarity about what will happen to EU citizens living in the U.K. is one of the main hurdles for the bloc’s executive body before it will allow talks to progress. That means deciding which court will settle disputes over their rights. Having a dispute-resolution mechanism in place would also remove one obstacle to a future EU-U.K. trade deal or any future U.K. membership in the nuclear-oversight organization Euratom.

7. Is the European Court of Human Rights part of the EU?

No, even though many Brits appear to mix them up. The human-rights court isn’t an EU institution; it’s an international court based in Strasbourg, France, and its rulings are based on the European Convention on Human Rights. That court’s powers spread far beyond the EU, covering the rights of 800 million Europeans in 47 nations that ratified the Convention (Further confusing the situation is the International Court of Justice, which is a court of the United Nations based in The Hague, the Netherlands.) Still, some Brexit backers also would like a break from the Court of Human Rights, which ex-Prime Minister David Cameron once accused of “unnecessary interference” in U.K. business.

The Reference Shelf

  • The EU made the protection of citizens’ rights key to its talks with the U.K.
  • How the Brexit split on citizens’ rights bodes ill for harder topics.
  • A QuickTake Q&A on whether Brexit will be hard, soft or scrambled.
  • The U.K. said the EU court may play a role in a “limited transition.”
  • A QuickTake explainer on why the Britain voted to quit the EU.
  • Follow @Brexit on Twitter for full coverage of Britain’s exit from the EU.




— With assistance by Laurence Arnold

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