The European Law Blog will be taking a summer recess. We’ll be back end of August with new commentaries, including on key Summer developments. Please do send us on your contributions throughout this period and we will get back to you in due course. Happy Holidays to all our readers!
By Oliver Garner
An impasse in Brexit negotiations exists between the United Kingdom and the European Union regarding the jurisdiction of the Court of Justice of the European Union. This post will consider the legal viability of a proposed solution to this stalemate: a joint EU-UK court to adjudicate upon citizens’ rights. Although the proposals have limited the substantive remit of such a potential court to citizens’ rights, due to this area being the most contentious between the EU and the UK, in principle one could envisage a joint court with jurisdiction over all aspects of the withdrawal agreement. It may be argued that such a solution would be politically unacceptable for the European Union as it allows the United Kingdom to “have its cake and eat it” through a substitute for the Court of Justice over which the withdrawing state has far more influence. However, this post will focus on the legal rather than political viability of the proposal. This post will consider the proposal with a particular focus on whether the joint court could violate the Court of Justice’s stringent conditions for protecting the autonomy of the EU legal order. A comparison will be drawn to the similar proposals for an EEA court in the original EEA agreement, and the eventually established EFTA court. Finally, beyond the United Kingdom’s withdrawal, the post will move on to consider whether the idea of a joint national and European court could provide a solution to the problems that arise from the unique composite nature of the EU legal order. Continue reading
By Rebecca Zahn
The British referendum on the country’s continued membership of the EU has dominated the political and media landscape both in the UK and abroad for the last few months. There has been a plethora of academic commentary on the possible consequences of a British exit (‘Brexit’). On 23 June, based on a turnout of 72%, 52% of the electorate voted for Leave, while 48% supported Remain. This narrow majority disguises dramatic differences between different regions: Scotland, Northern Ireland and large parts of London voted to Remain whereas substantial sections of Wales and most of England voted to Leave.
In the run-up to referendum day, workers’ rights were invoked repeatedly by both sides of the campaign as either a reason to back or oppose Brexit. Leave campaigners, such as Patrick Minford, Professor of Economics at Cardiff Business School, argued that the UK needed to reset its relationship with the EU to ‘jettison excessive protection and over-regulation, notably in the labour market’. Domestic employment laws originating from the EU legislature, such as the much vilified Working Time Directive, have often been described as a burden on business, inflexible, uncompetitive and inefficient. On the other hand, Remain campaigners such as Frances O’Grady, General Secretary of the British Trades Union Congress (TUC), warned repeatedly that ‘working people have a huge stake in the referendum because workers’ rights are on the line’ and the link between the UK’s membership of the EU and better protection of workers’ rights featured heavily in campaign material opposing Brexit. Continue reading
The EFTA Court handed down an interesting decision in September 2012 which merits a short comment (I am grateful to Christian Frommelt for pointing me towards the case). The Surveillance and Court Agreement of the EEA EFTA countries does not foresee a procedure akin to the preliminary reference procedure in the context of EU law. However, there is an advisory opinion procedure, which neither obliges the courts of EEA EFTA countries to submit questions on the interpretation of EEA law nor produces binding outcomes. In its decision in Irish Bank Resolution Corporation and Kaupthing Bank, however, the EFTA Court suggested – at least between the lines – that matters might not be just as simple as that. Continue reading
With our eyes glued on the Court of Justice, it is sometimes easy to overlook the work of its less-famous cousin, the EFTA Court, also situated in Luxembourg, just a stone’s throw away from the CJEU. Today, our attention turns to the judges of the European Economic Area, after they delivered an interesting case on the free movement of goods this morning. Continue reading