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Advocates call for clarity over CJEU role – but deal must come first

22 January 2018

No one should be left in doubt over the post-Brexit role of the Court of Justice of the European Union, or the status of its judgments – but these matters cannot be settled yet, according to the Faculty of Advocates.

Faculty was responding to the House of Lords EU Justice Subcommittee, which is examining the question of enforcement and dispute resolution post-Brexit and put the question, is there a role for the CJEU?

The UK Government has said that leaving the EU will "bring about an end to the direct jurisdiction" of the CJEU.

In its submission, Faculty states: "It is not possible to prescribe or describe an appropriate role for the CJEU at this stage in the Brexit negotiations… Until the substantive content of the Withdrawal Agreement and of any future relationship has been finally agreed, it is not possible (nor sensible) to prescribe the means by which disputes (whether between the UK and the EU, or in relation to the vindication of individual rights) should best be resolved."

It adds: "Whatever the role to be played by the CJEU, it is important for the rule of law that its role is transparent and that the status of any of that court’s decisions, past and future, should be clear to all parties, institutions and courts involved.

"This must include clarity about the CJEU’s role and the juridical status of its judgments not only under the eventual agreements after the UK’s withdrawal, but also during any ‘transitional period’."

The submission uses the example of family law and the need for continuing reciprocal arrangements as an area where consistency with the EU should be ensured and in which an "ultimate arbiter" role for the CJEU "would not encroach upon the sovereignty of the UK".

It also considers criminal justice and the impact on the European arrest warrant, commenting: "It is possible that there may be some divergence in approach by the courts, but this should not be overstated. CJEU rulings have become embedded in UK jurisprudence and it is unlikely that they will suddenly be departed from, especially in the area of criminal justice where it should be obvious and desirable that a consistent approach is applied in both jurisdictions."

Faculty also suggests that there may be a need for "imaginative thought about the participation of an ad hoc UK judge in certain proceedings before the CJEU".

Click here to view the full submission. 

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