Tag Archives: European Court of Justice

The block over which the government are now stumbling is called ‘dispute resolution‘. There is substantial disagreement between the negotiators of the United Kingdom and of the European Union.

On the one hand, the EU has proposed that the European Court of Justice should be the final arbiter in the construction of the withdrawal agreement and any future problems, because it says that the agreement will embody many provisions of EU law: the CJEU has declared itself to be the only binding interpretative authority of EU law.

On the other hand, the United Kingdom has argued that it is unacceptable that the appeal body, the final resolution body, should be a court whose judges are drawn only from the continuing EU member states. That is the nub of the matter.

Of course, the issue is bedevilled by the irrational demonisation of the European Court of Justice, first by those who campaigned to leave the EU and later by the Prime Minister, who has lost no opportunity to declare that leaving the jurisdiction of the CJEU is one of her red lines. I have never understood how that court could have been painted in such scarlet colours. In the first place, its function has never been to lay down draconian law which binds us all in servitude, but to interpret law which, even if it starts with the Council of Ministers or the Commission, has been subjected to a democratic process in the European Parliament. The United Kingdom has, since joining the EU, had full representation in these three bodies.

Secondly, we have always provided a distinguished judge to sit on the court. Sir Konrad Schiemann, the former United Kingdom-nominated judge of the court between 2004 and 2012, said in evidence to the Lords EU Committee that,
“in the Luxembourg court the tradition is that you lose your nationality the moment you join the court, which makes no distinction between judges of one nationality and another. … The tradition was that you were not there to plug the point of view of your national Government. That was not your job. Your job was to try to decide the law in the light of the general European interest”.

That, indeed, is the way in which the Court of Justice has operated: it is not a court of competing national judges.