European Court of Justice

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A key sticking point in the early stages of negotiations between the UK (United Kingdom) and the EU (European Union) is over whether the European Court of Justice (ECJ) should be the final arbiter after Brexit over the treatment of British citizens living in EU countires of which they are not a citizen and EU citizens living in the UK. The ECJ was funded in 1952 in Luxembourg and is one of the oldest institutions in the EU. It began life as the court that judged on member states' compliance with the 1950 Treaty of Paris, which created the European Cola and Steel Community. When the EU's remit was dramatically expanded in 1958 with the creation of the European Economic Community and the European Atomic Community it was decided that the ECJ would also oversee the two 1957 Treaties of Rome that created those institutions. The influence of the ECJ can be easily seen by looking up the European Union's website for its decade by decade history of the bloc. A large proportion of the developments relate to judgements issued by the ECJ. For that reason Brexit in Context primarily discusses the ECJ in the context of the democratic deficit that all EU member states have to accept, indeed it was an ECJ judgement in 1963 that established in EU law that member states have set aside some sovereignty in favour of the bloc.

The principal reason that the ECJ causes a democratic deficit for EU citizens is that it primarily adjudicates on international treaties and therefore if the court produces a highly unpopular judgement it is unlikely to ever be overturned. From a UK perspective that contrast sharply with the experience of the Supreme Court holding the government to account. A government is bound to act on that Supreme Court judgement, but the power lies with parliament as a new law can be enacted that resolves the legal contradiction that the court has determined. EU treaties are complicated matters to negotiate as shown by the reluctance to have a new treaty since the long process of member state approval required for the Lisbon Treaty. That reluctance to expose treaties to member state democratic systems has further increased the power of the ECJ.

The relationship between British citizens and the ECJ will change once the UK leaves the EU and any transistional phase is complete. Then the ECJ becomes a foreign court for protecting the EU treaties, citizens, businesses, and member states. The UK's relationship with the ECJ will relate to any continued engagement with the EU and it the realm of British companies accessing the EU single market that is to be expected. The demand that the ECJ oversee the rights of EU citizens living in the UK is another matter altogether and the case for allowing that is severely weakened by the ECJ's judicial activism in favour of European integration. The ECJ has since at least the 1960s refused to limit itself to what the EU treatiies say and has added new law, such as the right of an EU citizen to access the same level of student funding as a home student in the state in which the university operates. The willingness to add law would not sit well with the ECJ having a role in the UK or any other non-member state. Therefore it is the ECJ's past actions that have presented the major reason why it can only appropriately make judgements about matters taking place on the sovereign terrirtory of an EU member state.

It would be appropriate for the ECJ to adjudicate cases for UK citizens residing in an EU country on the basis of their previous freedom of movement rights, as the ECJ could legitimately extend the law in the member state against which the case is brought. It would be wholly inappropriate, however, for the ECJ to extend individual rights under the law of a non-EU state. This would result in a difference machanism for protecting UK citizens in the EU and EU citizens in the UK, but that is to be expected as in most instances both sets of citizens are bound by the laws of the state they have adopted as there home. The EU negoiators' insistence on the ECJ overseeing both sets of protections is a no-starter, primarily because the ECJ has a strong reputation for an expansive intrepretation of its own remit.

© Mercia McMahon. All rights reserved

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