U.K. Considers Alternatives to EU Court to Break Brexit Logjam

  • U.K. might accept version of EFTA Court, says person
  • Two sides at odds over role of European Court of Justice

U.K.'s May Leaves Brexit Squabble to Cabinet Members

U.K. Prime Minister Theresa May’s government is studying a way to guarantee the post-Brexit rights of European Union citizens modelled on the court that oversees relations between the bloc and Norway.

Having said it wants to end the jurisdiction of the EU Court of Justice, May’s team may be willing to accept a body akin to the court of the European Free Trade Association, according to a person familiar with the matter.

Using such a template could find favor in the EU after its chief negotiator, Michel Barnier, recently noted EFTA’s court is able to interpret the bloc’s laws. An agreement could unstick the logjam surrounding the rights of EU citizens which is slowing the divorce talks and risks delaying the trade deal May wants.

The idea of EU judges enjoying some say in Britain beyond March 2019 gained ground last week when U.K. Chancellor of the Exchequer Philip Hammond told the BBC that some countries have a relationship with the EU with “their own special tribunal to resolve any disputes.”

Read more: Why EU Court of Justice is a Brexit Battleground: QuickTake Q&A

Asked on Monday about the issue, May’s spokesman, James Slack, limited his response to what could happen in a transitional period after Brexit. While he said the U.K. is “not looking for an off-the-shelf model,” he added “the precise details of what an implementation period looks like are for negotiation."

Sticking Point

Initially billed as the easiest part of the split to resolve, the topic of protecting the rights of citizens has proved anything but. The main stumbling bloc has been the role of the ECJ, whose rule May has promised to free the U.K. from.

Barnier has been equally clear too, arguing only the ECJ can provide the guarantees that European citizens’ rights won’t be diminished after Brexit -- and no British court will be good enough.

Unless a compromise can be found the talks threaten to drag on, eating into the time available to the U.K. to negotiate a long-term trade deal with the EU. Barnier has said he won’t allow conversations to begin on that until "sufficient progress" is made on citizens rights, the Irish border and a financial settlement.

“There has to be a formula that is going to work for the U.K.,” said Mujtaba Rahman, managing director of Eurasia Group. “It may be EFTA-like, it may be something different -- some form of international court where you have a mixture. Frankly, the Europeans understand that.”

EFTA History

The EFTA court was created in 1994 and its role in many ways mirrors that of the ECJ even though both courts are independent.

The EU Court of Justice has the final say over disputes concerning the 28 EU nations, and the EFTA court has the last word on any challenges concerning the members of EFTA, which are Norway, Iceland and Liechtenstein. This includes referrals from national courts in those member nations, or direct actions against those governments accused of violating European rules.

In practice, this would mean that a dispute concerning a Norwegian in Paris would first end up in a domestic court. If questions over EU law come up, the court would seek guidance from the Luxembourg-based EU judges.

The main difference though is that rulings from the ECJ are binding, while national courts in the EFTA states are not formally bound by their court’s rulings although often accept them.

The EFTA court has three judges, but unlike the ECJ its working language is English. This and probably also its smaller workload, allow the EFTA court to be quite fast and churn out rulings on average in eight to nine months.

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