Britain’s proposal on the European Court of Justice is riddled with contradiction

The relationship between the UK and the European Court of Justice (ECJ) has always been a tormented one. The British are not alone. In the 1960s, the ECJ was already sharply criticised by Michel Debré (Charles de Gaulle’s prime minister) and by the German Constitutional Court. Margaret Thatcher, however, was a quite persistent opponent. From experience, the author can attest, as a matter of fact, that heads of government do complain occasionally about the ECJ during the European Councils.

Most often, the Court is criticised for its judicial activism. This seems largely unwarranted. Generally, it has only applied in an integrationist way a treaty of an integrationist nature, designed to establish a central role for the rule of law.

The ECJ is certainly not beyond reproach. Some judgments are very weak in their explanations. Its administrative management remains strongly opaque. After the doubling of the General Court’s judges, the institution will comprehend 96 judges and advocate generals. This huge contribution to the European Union institutional system’s general obesity was only obtained because the ECJ possesses a half-monopoly of legislative initiative for the revision of its own statute (something that exists nowhere in the world, and should be abolished).

Nowadays however most politicians prefer soundbites to serious analysis. This creates only misunderstandings about imagined problems without bringing real improvements to real problems.

In any case,the relationship between the British political circles and the ECJ has still worsened since Thatcher. Getting out of “the government of European judges” appeared in many speeches, and finally Theresa May decided in 2016 to make this one her “red lines” in the Brexit negotiation. From that day, it was clear that this negotiation would get into trouble. The other red lines concern flexible topics. One can imagine ten different compromises about the contribution to the EU budget or the free movement of people. It’s much harder for ECJ competence.

The public (and sometimes members of parliament) in Europe often do not understand the central role of the ECJ (and the European Commission) in the single market. Modern trade conflicts arise from regulatory measures that have, intentionally or not, a protectionist impact. To minimise them and optimise free trade’s benefits, one needs to define common rules and accept mutual recognition for the rest. The World Trade Organisation did this in a small way, the EU in a big way. It thus needs very solid institutions to guarantee respect for the rule of law. The Commission is one, the Court of Justice the other. Trustworthy referees are the system’s foundations. Without them, the single market is simply impossible.

As a matter of fact, the ECJ’s role has been reinforced in the last European Treaties even beyond the single market. The same logic applies to police and justice cooperation, for example. Furthermore, after the failure of the Doha Round of WTO negotiations, the EU has launched a new generation of broad and deep trade agreements, which produce the same impact.

Consequently, when the UK expresses simultaneously the desires to keep a deep and comprehensive relationship with the EU and to escape from the ECJ competence, it proffers a fundamental contradiction. The only accepted compromise on this topic until now has been the European Free Trade Association Court, which is half autonomous. That why a lot of lawyers have been supporting it. A deep trading relationship and deep legal constraints have always gone hand in hand, and that won’t change.

During the last two years alas the UK authorities have not accepted this evidence. The last Chequers Brexit “plan” reflects a very limited progress, but cakeism is not dead. It mentions a "joint institutional framework" which will be established to interpret UK-EU agreements. Decisions by UK courts would involve "due regard paid to EU case law in areas where the UK continued to apply a common rulebook.” Cases would still be referred to the European Court of Justice (ECJ) as the interpreter of EU rules, but the Court "cannot resolve disputes between the two.”

Even avid to keep selling German cars and Italian prosecco to the UK, EU members will not accept this. They simply cannot, if they want to protect the whole single market concept.

The author is a former negotiator of EU Treaties and European judge. On these topics, he has published repeatedly. To read his writing on activism and weakness of jurisprudence,click here. On the doubling of the General Court’s judges, click here.