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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