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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.
An impasse in negotiations
Whereas the United Kingdom government has made ending the jurisdiction of the supranational court a red-line in its vow to “take back control” of its sovereignty, the European Union has established the “essential principle” that any deal for the status of EU and UK citizens must be capable of enforcement before the Court of Justice of the European Union. This stalemate was reflected in the recent joint press conference of the UK Brexit Secretary David Davis and the European Commission’s Chief Brexit Negotiator Michel Barnier. The latter stated that there remained a fundamental divergence between the parties after the round of negotiations regarding the means of guaranteeing citizens’ rights. Ominously, in the technical note on the comparison of EU-UK positions on citizens’ rights, the “Role of CJEU” column is marked in red “For discussion in Governance Group”. To add further fuel to the growing fire, David Davis has recently stated that giving EU nationals in the UK the right to appeal to the European Court of Justice would be the same as allowing the US Supreme Court a role in Britain.
This fundamental divergence has given rise to the idea of a joint court composed of both UK and EU judges. Surprisingly, this compromise has found support across the battle-lines: having been proposed by the German Foreign minister Sigmar Gabriel, it has also apparently been endorsed by the most ideologically feverish Brexiteers in the United Kingdom. The President of the Court of Justice of the European Union, Koen Lenaerts, has also made comments regarding the enforcement of UK and EU relations after Brexit. However, contrary to the joint court proposal, he recently stated in a television interview that the “wheel would not have to be re-invented” in resolving disputes between the UK and the rest of the EU after Brexit as the solution of the EFTA court already exists and functions very well. However, this would assume that the United Kingdom would be willing to re-join EFTA and the EEA agreement, a position which is far from the current government’s agenda. Therefore, the starting point for this post is that, assuming neither side backs down, the proposal of a joint EU-UK court is arguably the only politically viable solution to the current negotiating impasse. However, beyond political expedience, it is necessary to consider whether such a solution would be compatible with EU law.
Jurisdiction and Withdrawal
One of the characteristics which distinguishes the supranational constitutional order of the European Union from Public International Law is the crystallised jurisdiction of the European Union’s permanent court. In fulfilling its role outlined in Article 19 TEU to “ensure that in the interpretation and application of the Treaties the law is observed”, the Court has not only functioned as a “motor of integration” in substantive areas of the law, including citizens’ rights, but has also ensured its own position at the apex of the interpretative hierarchy through establishing and refining the doctrines of direct effect and the supremacy of EU law. The result has been a rather remarkable achievement that is perhaps taken for granted in Europe. Far from the uneasy and transient position of other international courts, the Court of Justice has established itself as akin to a domestic court in the scope of its jurisdiction and the obedience to its rulings.
However, the seismic consequences of a Member State triggering Article 50 TEU is that the constitutional fabric of the European Union’s legal order is unravelled as the withdrawing state moves from constituent subject of the Union to a Third Country. This de-integrative process leaves the jurisdiction of the Court of Justice as an open question to be resolved at the negotiating table. It is perhaps indicative of the key role the Court has played in European integration that the European Union’s opening hand on the protection of citizens’ rights has argued for the full jurisdiction of the Court of Justice over the agreement. For it is the Court that has time and time again come to fill the gaps created by the vague provisions of Article 20 TFEU and its associated provisions when faced by European individuals seeking to vindicate their citizenship rights.
On the other end of the negotiating table, the emotive rhetoric of the leave campaign in the 2016 referendum focused on returning sovereignty and control to the United Kingdom. The Theresa May government has followed this ideological approach by seeking the repatriation of both the norm-creation process, through restoring Parliamentary Sovereignty, and the norm-application process by reserving all legal adjudication to UK courts. The means by which this will be achieved are made explicit in s.6 of the European Union (Withdrawal) Bill, commonly referred to as the Repeal Bill, which details that UK courts will not be bound by any decisions of the Court of Justice after withdrawal, and that the retained case-law of the Court of Justice will be incorporated into UK law and thus UK courts will be able to depart from it in accordance with the rules for departing from their own case law. A further incompatibility between the EU’s negotiating position and the Repeal Bill concerns the preliminary reference procedure. Whereas the former insists that a mechanism analogous to Article 267 TFEU must be established, s.6(1)(b) of the Repeal Bill states that UK courts cannot refer any matter to the European court on or after exit day.
In the face of two mutually incompatible positions, the proposal for a joint court composed of both UK and EU judges seems to be a potential compromise. As the outgoing President of the UK Supreme Court has stated in extra-judicial remarks “[o]ur precious and much vaunted legal rights are of no value if we cannot enforce them”. This applies particularly powerfully in the present situation due to the fact that the negotiations pertain to the rights to move, reside, and integrate in other states that both EU and UK citizens have relied upon in order to pursue their life plans. In theory, therefore, the notion of an impartial body that is equally weighed with judicial representatives from both sides may be regarded as not only desirable but crucial for the success of the United Kingdom’s withdrawal in the absence of agreement on the jurisdiction of the Court of Justice. Such a new body may, however, create problems in practice.
The proposal for a joint EU-UK court could pose problems for the Court of Justice’s understanding of the autonomy of EU law, and its exclusive position as the interpretative arbiter of its substantive content. This may explain why Sigmar Gabriel qualified his proposal with the condition that the joint court follow the Court of Justice’s case law. The doctrine of autonomy has most dramatically been explicated in Opinion 2/13 in which the Court found that the draft accession to the European Convention of Human Rights agreement was incompatible with EU law. The Court of Justice held that features of the agreement that enabled access to the European Court of Human Rights with regard to potential violations of the ECHR by Member States or EU institutions would curtail the Court of Justice’s ability to fulfil its role of ensuring the consistent interpretation and application of EU law.
By contrast to accession to the European Convention of Human Rights, which would effectively enable the jurisdiction of a separate international court over all aspects of EU legislative and administrative acts, the ambit of jurisdiction of any future joint EU-UK court would be far more limited. Although the EU’s position is for the substance of existing EU citizenship rights to be upheld in their entirety by the withdrawal agreement, it must be noted that even if this substance were maintained the formal source of law would be different. Rather than being EU law per se, the source of law would be international treaty as detailed in Article 38(1)(a) of the Statute of the International Court of Justice. However, despite no longer deriving from primary law, the norms on citizens’ rights found in the international agreement would still form an integral part of the EU legal order. As such, if a court were called upon to adjudicate upon their substance, they would undoubtedly be adjudicating upon EU law particularly as reference to the original sources in the Treaties could be necessary for interpreting the withdrawal agreement.
A more salient analogy than the EU’s abortive accession to the ECHR is the European Economic Area Agreement and the EFTA court established therein. This is particularly relevant as the EFTA court has been called upon to adjudicate rights analogous to those found in primary and secondary law, but with the explicit caveat that the concept of citizenship of the European Union does not apply to nationals of EEA states. This reflects the position that UK citizens will find themselves in after their state’s withdrawal. The Court of Justice adjudicated upon the compatibility of the two versions of the EEA agreement with EU law in Opinion 1/91 and Opinion 1/92. Perhaps the most relevant line of the former judgment for the present situation regards the EEA being established on the basis of an international treaty which merely creates rights and obligations between the Contracting Parties and, unlike the EU Treaties, makes no provision for the transfer of sovereign rights to inter-governmental institutions. This would reflect the position of the United Kingdom and the European Union following Brexit. The difference in purpose between the EEA Agreement and the EU treaties was used by the Court of Justice to substantiate its argument that although the wording of the EEA Agreement and the Treaties may be identical, diverging interpretation may be justified. This could provide a template for an autonomous interpretation of the citizens’ rights in the withdrawal agreement by an independent joint court, even if the wording of the rights is identical to the relevant primary and secondary EU law provisions on citizenship. Such an approach could also address the doubts of some UK commentators that the joint court would merely be a proxy for the Court of Justice, rather than being a truly impartial body for arbitration on an international agreement.
However, the crucial sticking point for the compatibility of such a joint court with EU law is arguably whether the decisions of the body are binding upon the EU institutions and the Member States. The “EEA Court” proposed in the original version of the EEA agreement bears a striking similarity to the proposed UK-EU court. Article 95 of the Agreement outlined that the court was to be composed of 8 judges, including 5 from the Court of Justice. However, the Court of Justice found at paragraph 24 of Opinion 1/91 that the “interpretation mechanism” whereby the EEA court would have to interpret the rules of the agreement in conformity with the case-law of the Court of Justice would not be sufficient to ensure the legal homogeneity between the EEA states and the EU Member States. At paragraph 26 and 27 the Court substantiates the reasons for this as the fact that the interpretation mechanism would not respond to the evolution of the case-law of the Court of Justice, and furthermore would not cover essential elements of the case-law such as direct effect and primacy. Consequently, the Court found at paragraph 29 that “the divergences which exist between the aims and context of the [EEA] agreement, on the one hand, and the aims and context of Community law, on the other, stand in the way of the achievement of the objective of homogeneity and the interpretation and application of the law in the EEA”.
In Opinion 1/92, the Court of Justice found that the amended proposal for an “EFTA court” was, by contrast, compatible with the autonomy of EU law. This is because the new version of the EEA Agreement established a new procedure to preserve the homogenous interpretation of the agreement through the EFTA Joint Committee monitoring the evolution of the Court of Justice’s case law, and a mechanism analogous to the preliminary reference procedure whereby the Court of Justice would be asked to give a ruling on the interpretation of relevant rules in disputes between the Contracting Parties (Articles 105-111 of the EEA Agreement). Furthermore, Article 107 and Protocol 34 amended the agreement so that EFTA States were authorized to ask their domestic courts to ask the Court of Justice to give a decision, rather than the previous wording which enabled the national court to “express itself” on the interpretation of a provision. Crucially for present purposes, the Court of Justice also highlighted the difference at paragraph 13 that “[T]he EFTA Court will have jurisdiction only within the framework of EFTA and will have no personal or functional links with the Court of Justice”. This ruling is crucial for considering in what form the proposal for a joint EU-UK court would be accepted by the Court of Justice.
As Laurens Ankersmit has argued with regard to Investor-state dispute settlement, “the ECJ particularly objects to the establishment of other courts for claims by individuals where questions of EU law are involved, since this is so central to the preliminary reference procedure and the uniform and consistent interpretation and application of EU law”. One may envisage a situation in which a UK citizen resident in a Member State challenges a national law restricting their residence or associated rights by claiming before the EU-UK court that the national law violates the agreement between the United Kingdom and the European Union. If, as with investor state dispute settlement, such a claim would bypass the national courts and thus the preliminary ruling architecture, then the decision of the joint court would constitute an application of the EU law manifested in the withdrawal agreement with a result that would be binding upon the host Member State in question. Such an eventuality can be argued to violate the delicate balance between Member State courts and the Court of Justice of the European Union in upholding the autonomy of the EU legal order.
It may be argued that such a problem can be addressed through institutional design. For example, as opposed to investor-state dispute settlement a requirement to exhaust local remedies could be established akin to the requirement before ECHR claims can be brought by individuals before the European Court of Human Rights. Furthermore, a preliminary reference mechanism could be established, whereby the joint court would refer any ambiguous points of EU law to the Court of Justice, analogous to the provision provided for by the final form of the EEA Agreement. However, it may be claimed that providing a port to the overriding jurisdiction of the Court of Justice would undermine the entire rationale for the United Kingdom of establishing such an independent joint court. Indeed, although a direct reference would not be made between a national court and the Court of Justice as the joint court would function as an intermediary, such a mechanism would undermine the legislative purpose behind the Repeal Bill’s provisions regarding ending the preliminary reference mechanism. I would suggest that, rather than functioning in conjunction with the Article 267 TFEU mechanism, the purpose of a joint court would be to provide a substitute for such preliminary reference. The presence of EU judges would fulfil this function of providing expertise on the substance of EU law through justices being “seconded” to the joint court Therefore, a means by which a joint EU-UK court could be established that would be compatible with the autonomy of EU law would be if it were to function as a body which only has binding jurisdiction over the United Kingdom in the same way that the EFTA court only exercises jurisdiction over the EFTA States. Aggrieved EU citizens would effectively challenge the UK domestic implementation of the withdrawal agreement when they bring claims before the joint body. For UK citizens in the EU, the means of challenging the Member States’ own domestic implementations of the withdrawal agreement would remain within the architecture of claims before national courts of the remaining Member States which would if necessary be referred to the Court of Justice.
A Prototype beyond Brexit?
The joint EU-UK court to adjudicate upon citizens’ rights is not the first time that such a national-supranational hybrid court has been proposed. Ironically, the de-integrationist blow of Brexit could lead to a revival of past proposals for joint Member State and EU constitutional courts that were proposed in order to foster further integration. After the conclusion of the Maastricht Treaty, Joseph Weiler made the proposal for such a court in which national constitutional court judges and justices of the Court of Justice of the European Union would sit in order to determine questions of the demarcation of competences. The need to resolve such boundary disputes between national constitutional orders and the European constitutional order has come into sharp relief with the Danish Supreme Court’s decision in Dansk Industri not to apply the general principle of non-discrimination on the basis of age despite the Court of Justice finding the principle applicable. The specific nature of the preliminary reference procedure means that after the national court’s decision there is no means for the Court of Justice to have the ‘final say’ on the matter. The case, and others like it such as Taricco in Italy, show that state disputes with the European Union are not limited to those who are withdrawing from membership. If a joint court between the UK and the EU is established and is successful in providing a compromise between the European and national position on substantive issues this could provide a template in order to diffuse tensions between national constitutional courts and the European Union’s court in the future through the provision of a final judgment on such conflicts that does not require setting ultimate supremacy either at the national or the European level. However, it seems clear that such a radical upheaval of jurisdiction within the European Union would require the Court of Justice to relax its current strict position over interpretative superiority in the name of the autonomy of the EU legal order.
The establishment or not of a joint EU-UK court to adjudicate on the rights of citizens after Brexit depends first of all on the politics of the negotiation process, and how jealously each party guards its own red-lines. However, I would argue that unless the negotiations positions of either side shift, a joint court would seem to be the only possible acceptable route forward on jurisdiction. If such a proposal does indeed find its way into the withdrawal agreement, it then faces the potential legal challenge of a ruling by the Court of Justice if such an opinion is requested in accordance with Article 218(11) TFEU. I would submit that the Court of Justice would only find such a joint court compatible with EU law if procedural safeguards such as a preliminary reference procedure were included to ensure the Court of Justice’s eventual jurisdiction. Such a structure would seem to undermine the United Kingdom’s rationale for supporting such a joint court. Therefore, it seems likely that any such joint court would be limited to a body of last appeal for questions pertaining to the withdrawal agreement on citizens’ rights within the jurisdiction of the United Kingdom legal order. Indeed, the experience of the EFTA court’s adherence to its larger cousin’s case law would suggest that it is the United Kingdom’s government that may be underwhelmed by how closely such a joint court would mirror the case-law of the Court of Justice of the European Union. However, if the independence and impartiality of such a court could be guaranteed, it has the potential to provide a prototype for a future method of resolving fault-line disputes between national courts and the European court from the unlikely source of the United Kingdom’s withdrawal from the European Union. Brexit may well be the greatest challenge that has faced the European Union’s fledgling constitutional order. However, the question of jurisdiction over the withdrawal agreement may be just one example of the invaluable opportunity to learn how to resolve the tensions between Member States and the Union more harmoniously in the future.