Brexit and the European Court of Justice

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Publication Date November 2017
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This paper considers the prospective United Kingdom (UK) departure from the European Union (EU), and what might follow, from the particular perspective of the European Court of Justice (ECJ) (or, Court of Justice of the European Union, CJEU) and its function as an adjudicatory body. The subject is of substantial importance in its own right.

Moreover, to appreciate it fully is to comprehend some of the most significant features of the ‘leave’ project as a whole. Expert commentaries on this subject have tended to approach it from a rational perspective, discussing the concessions the UK might make to achieve a more satisfactory outcome.

However, the present work emphasises that UK attitudes towards the ECJ (as towards the EU generally) are founded in questionable assumptions that in turn create the premise on which the programme of departure from the EU rests. Within this context, to analyse the UK approach to negotiations through a lens of rationality is a potentially flawed approach. This paper, therefore, considers Eurosceptic perceptions of the Court, interrogating their validity, but also accepting that, whatever their merits, they are nonetheless the basis for the current UK posture.

It begins by considering the views taken of the ECJ by those hostile to UK participation in European integration; and critically assesses their analyses. The paper then discusses the UK position regarding the ECJ in negotiations taking place under Article 50 of the Treaty on European Union (TEU), and the implications of the UK stance in this area. It asks what the alternative to the ECJ might be.

The paper considers the weakening of the position that to leave without a deal in place is a reasonable – or even desirable – option; and the consequences of this change of discourse for attitudes towards post-EU arbitration arrangements

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Related Links
Institute for Government, 2017: Dispute resolution after Brexit
ESO: In Focus: Brexit - The United Kingdom and the European Union
United Kingdom: Department for Exiting the European Union: Policy Paper, August 2017: Enforcement and dispute resolution - a future partnership paper
Conservative Home, 01.12.17: Brexit negotiations. The key issue now is the role of the ECJ
Leave Means Leave: Press Release, 23.08.17: Richard Tice: 'Leaving the EU means leaving the ECJ – remaining subject to it in anyway would be completely absurd'

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