One of the most pressing Brexit challenges facing the UK government—and there are plenty of them at the moment—concerns the future role of the European Court of Justice, the supreme tribunal of EU law across the Union as a whole (and top court in the confusingly-named Court of Justice of the European Union.) Despite recent announcements intended to clear things up the government remains in a downright mess over the ECJ.
The problem is that Brexit Britain will still need a dispute resolution mechanism with the EU. We could accept ECJ jurisdiction as we do now—but Eurosceptics want nothing to do with the Luxembourg court. For those fixated on indivisible sovereignty this is the reddest of red lines. The PM conceded this week that the ECJ could arbitrate during the transition period, but even if she can convince her rowdier backbenchers to back temporary membership, there’s little chance she’d even attempt to convince them to stick with it long-term. The Brexit vote is interpreted as Britain voting to reclaim control over its own laws.
The fundamental questions over the Luxembourg Court and what comes next remain entirely unsolved. If we want to trade as part of a European rules-based order, then we need an agreed referee to interpret those rules, but it’s increasingly looking like we’re going to reject the referee already on the pitch. So what to do?
Some in the know believe that membership of the European Free Trade Association Court could offer a way out. The EFTA Court—also based in Luxembourg—was set up in 1994 and is responsible for Iceland, Liechtenstein and Norway, members of the European Economic Area but not the EU. Significantly, it also follows ECJ jurisprudence—but as a separate court the government might just be able to sneak UK membership past the Brexiteers.
And it’s not just being discussed over here. There is a possibility that in future, “Britain may have a judge on the EFTA Court bench,” the Court’s President Carl Baudenbacher told me.
“The EFTA Court... works in English. Its own principles are influenced by the British inspired EFTA tradition of free trade"“Whatever the design of the intended ‘deep and special partnership,’ it is rather doubtful whether Britain will be able to enjoy such a relationship with the EU while relying on a system of arbitration," he said. "It is probable that a judicial mechanism would be required.”
In the absence of ECJ membership, the EFTA Court may be able to offer what we need. “Britain could try to dock to the EFTA pillar’s institutions—the EFTA Surveillance Authority and the EFTA Court—for a transitional period, or as part of that intended partnership. Equally, some have suggested that Britain could seek to join the EFTA side of the European Economic Area.” This discussion of potential UK involvement will ignite debate in Westminster.
Raphael Hogarth, Research Associate at the Institute for Government and author of a new report on the ECJ, said: “The government will not be able to cut off the influence of the ECJ entirely, and should not try to.” To ditch the ECJ altogether would be technically near-impossible. “Whatever dispute resolution mechanism the government dreams up for the withdrawal agreement, the ECJ will not play second fiddle to it on EU law. It will want the final say, and could even veto the agreement if denied it.”
But the EFTA Court could work as a middleground option, channelling the ECJ while offering some concession to hardline Brexiteers. “The UK and EU could ask the EFTA Court, with some UK judges added, to get involved" as a way to get some distance from the ECJ without ditching it altogether, he explained. "This could be a good compromise for provisions that involve EU law, because the Commission and the ECJ have already made their peace with the idea of the EFTA Court interpreting provisions of EU law in their back yard." Crucially, the UK "would not have to be inside the European Economic Area (EEA), like Norway, to use the EFTA Court for enforcement.”
That last point is key, as EEA membership would be sure to kill the idea dead: Brexiteers would never accept it as it requires that free movement continue. But nonetheless this third option may still be a step too far for them. “It remains to be seen whether this is acceptable to the government or the backbenches,” admitted Hogarth. “Where the ECJ has already ruled on a legal issue, the EFTA Court follows it pretty reliably. And according to the European Economic Area (EEA) Agreement, in the unlikely event that the EFTA Court and the ECJ cannot agree on some legal question, a joint committee of ministers and diplomats from both sides can, by mutual consensus, refer the case to the ECJ.”
There is no easy answer then, and Baudenbacher admitted: “It is a matter for politicians to chart Britain’s future course outside the European Union.” But EFTA Court membership might just concede enough ground to each side to make things work. Baudenbacher said: “The EFTA Court is a mature, nimble institution, which works in English. Its own principles are influenced by the British inspired EFTA tradition of free trade. At present, it referees the playing field on one side of the EEA Agreement and Iceland, Liechtenstein and Norway have found this to be advantageous. This distinct structure has proven its worth: after all, a bird in the hand is worth two in the bush.”
