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Sunday, April 16, 2017

Brexit and the European Court of Justice - proposed BREXIT guidelines of the European Council

One of the spectacular arguments of the brexiteers was to liberate the U.K. from the "tyranny" of the European Court of Justice (in general from European lawmaking).
The guidelines formulated by the team of Donald Tusk put important limitations to this ambition.
This is partially related to the transition period, partially to the new arrangements.
The new arrangements will require a judicial authority to treat the conflicts which arise from the interpretation of the agreement and to sanction the non-compliance of the parties (remember, the judicial remedies were one of the sensitive points of the TTIP). The EU proposes this to be the European Court of Justice. Another solution, however, may be arbitration - as mentioned, one of the stumbling blocks of TTIP. Whether the EU agrees to that, is up for a bargain.
Also, if the new arrangements are not agreed within the two years from when article 50 was triggered (i.e. end of March 2019), the parties need transitional arrangements. It was already floated by the EU that EU law may remain in force in the U.K. - and this is more in the interest of the U.K. that the EU, therefore the EU has a leverage in this and will use it to make the European Court of Justice the arbiter on the implementation of European law also during this period.
And finally: cases in progress, not just before the European Court of Justice but also administrative instances (like infringement procedures of the European Commission) and cases which may be initiated later based on the period when the U.K. was still a member and was thus bound by European Law. The negotiating guidelines explicitly mention that in these cases the European Court of Justice has to retain jurisdiction even after the departure of the U.K. from the EU.
So - like a lot of other things - this is not so clear cut, as the "Leave" campaigners tried to depict. Surprises still in the making...

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