UK’s ju­di­cial ties with EU ‘leave ECJ in charge’

Cyprus Today - - UK -

BRI­TAIN’S pro­posed ju­di­cial ties with the EU would still see the Euro­pean Court of Jus­tice take the bind­ing de­ci­sion on im­por­tant cases in UK law af­ter Brexit, ac­cord­ing to a le­gal opin­ion that could stir con­cern among hard­line Brexit cam­paign­ers.

Prime Min­is­ter Theresa May has pledged that Bri­tain will no longer be un­der the ju­ris­dic­tion of the ECJ af­ter Brexit, and re­gain­ing full con­trol of Bri­tain’s laws is one of the key at­trac­tions of Brexit to its pro­po­nents.

Mrs May has pro­posed an “in­de­pen­dent ar­bi­tra­tion panel” in cases where there is a dis­pute with the Euro­pean Union. But in ar­eas where Bri­tain has agreed to abide by a “com­mon rule­book” with the bloc, Bri­tain would recog­nise that the ECJ is supreme on the in­ter­pre­ta­tion of EU law.

An opin­ion by Carl Bau­den­bacher, a for­mer pres­i­dent of the Euro­pean Free Trade As­so­ci­a­tion (Efta) Court, to be pub­lished by a com­mit­tee of law­mak­ers, said that such a re­la­tion­ship would likely be mod­elled on agree­ments by the EU with Ukraine and Moldova.

“It is in my view un­likely that the EU in­sti­tu­tions and in par­tic­u­lar the ECJ will agree to an ar­bi­tra­tion model that is more favourable to the UK than the Ukraine model is to Ukraine,” he wrote in an opin­ion to be pub­lished by a com­mit­tee of UK law­mak­ers.

“This means that in all im­por­tant cases, the ECJ, ie, the court of the other side, would take the bind­ing de­ci­sion.”

Mr Bau­den­bacher said that any “at­tempt to break el­e­ments out of the Ukraine and Moldova agree­ments and trans­plant them into a UK-EU agree­ment is am­a­teur­ish brico­lage,” he said, us­ing a phrase sug­gest­ing an in­co­her­ent jum­ble.

In­stead, Bri­tain should con­sider a ju­di­cial re­la­tion­ship with the Euro­pean Union mod­elled on Efta’s ar­range­ments so that it can en­sure its au­ton­omy from the ECJ af­ter Brexit, he said.

The Euro­pean Eco­nomic Area (EEA) Agree­ment has the Efta Court and the ECJ as its two pil­lars, with the Efta Court, which could have Bri­tish judges, of­ten mak­ing the key rul­ings for nonEU mem­bers.

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