The European Court of Justice should not adjudicate Treaty rights in post-Brexit Britain

One of the most bizarre features of the wider media ‘debate’ accompanying the negotiations for the United Kingdom’s exit from the European Union is the ready call in many quarters, for continued indirect or even direct jurisdiction of the European Court of Justice (ECJ) over aspects of the UK’s exit arrangements. Astonishingly, such calls are not confined to the envisaged transition period but extend far into the future.

As part of the provisional Phase I Brexit deal, the UK Government has already accepted that the UK courts will continue to make requests for binding preliminary rulings by the ECJ in UK proceedings involving the determination of EU citizens’ rights issued up to eight years after Brexit.

Additional EU demands for a continuing role for the ECJ in post-Brexit Britain are simply extraordinary. As of 30th March 2019 the ECJ will convert from being a joint court in which the UK plays an equal part, into being a wholly foreign court over which the UK will no longer have any degree of control. Nor will the UK have any say in the appointment of the judges of the court. It is extremely rare for any sovereign state to submit in an international treaty to adjudication of disputes by the courts of the other party to the treaty. The reasons are obvious: such acceptance of a party to a treaty of the jurisdiction of the domestic court of the other treaty party is i. demeaning and degrading to its status as a sovereign state, and ii. carries with it the very real risk that such a court will be biased and partial in its rulings.

The resolution of disputes by binding international adjudication is of course both a common and often necessary feature of bilateral and multilateral treaties. Adjudication can be by bilateral tribunals or arbitral bodies set up under a specific treaty, or sometimes by permanent international courts or bodies, such as the International Court of Justice (ICJ) or the WTO Disputes Panels and Appellate Body. In all such cases, great care is taken to ensure that the body is balanced between the parties.

International adjudication by an impartial and balanced tribunal is the general and near universal international practice. It is also the general practice of the European Union in its treaties with non-Member states. Of the 50 plus EU trade or association agreements with third countries, only three come close to imposing ECJ jurisdiction on non-Member states, and only two create direct ECJ jurisdiction over another country. The EU-Turkey and the draft EU-Moldova customs union agreements require both countries to follow the case law of the ECJ in applying the common rules of the customs union.

The second EU external agreement which effectively imposes ECJ internal market decisions on non-Member states is the EEA Agreement. However, there is no direct jurisdiction of the ECJ over the EEA states which belong: instead, a special EFTA which consists of judges from Norway, Iceland and Liechtenstein, applies the rules of the internal market to those countries.

Because the UK will leave both the EU single market and the customs union, neither the EU-Turkey/Moldova customs union agreements nor the EEA Agreement can serve as a model for the UK. The UK Government should therefore unequivocally reject any suggestion for continued ECJ jurisdiction further and beyond the phase I accord. Not even tiny Andorra or San Marino accept ECJ jurisdiction.

It is difficult to overstate the case that the ECJ is neither an impartial nor a conventional court. Central to the problem of judicial activism in the ECJ is the court’s unique approach to treaty interpretation, which is unlike that of any other international court. The general principles of treaty interpretation are laid down in the Vienna Convention on the Laws of Treaties (VCLT). Article 31 assigns a primary importance in treaty interpretation to the ‘ordinary meaning’ of words. It states that treaties shall be interpreted in ‘good faith’ and that their terms should mean what they say unless, according to Article 32, the meaning is genuinely ‘ambiguous or obscure’ or ‘manifestly absurd’.

The EU is not a party to the VCLT. However, Article 5 of the VCLT makes clear that the Convention applies to the EU Treaties just as it applies to all other treaties (“The present Convention applies to any treaty which is the constituent instrument of an international organization and to any treaty adopted within an international organization without prejudice to any relevant rules of the organization”). In manifest breach of this provision, the ECJ has never regarded itself as bound and does not apply the methods of treaty interpretation contained in Articles 31 and 32.

Unsurprisingly, in interpreting EU law the ECJ does not therefore accord primacy to the ordinary meaning of words as most other international courts. Instead the ECJ adopts an ultra-flexible approach which allows the ECJ to choose between various interpretative criteria – literal, contextual, purposive and meta-teleological – and to give the greatest weight to whichever criterion best promotes a pro-EU outcome.

For instance, this approach allows the ECJ to depart from the wording in favour of a purposive interpretation even where the wording of the relevant provision is neither ambiguous nor leads to an absurd outcome. Purposive interpretations generally give courts far greater interpretative room for manoeuvre than text-based interpretations. Specifically, the problem with purposive interpretations of law is that courts, and the ECJ more so than any other court, do not confine themselves to purposes written into the documents they are asked to interpret and has used the purposive approach to resolve legal disputes concerning the distribution of powers between the EU and its members in a pro-integrationist manner. In this manner, the court has over time and without textual support in the Treaties substantially extended the scope of EU law and established its own judicial oversight over many areas of national law. It has not infrequently done so in a departure from clear language in the Treaties or EU legislation.

The ECJ was set up to act as an arbiter between the EU and its Member states but it has never discharged that function impartially. Once the UK leaves the EU, the ECJ will accord the UK even less respect than it has done so during the time of British EU membership. The ECJ, let there be no doubt, is particularly unsuited to the task of impartial adjudication on bilateral treaty obligations assumed by a non-Member state.

International law provides many impartial alternatives to ECJ jurisdiction. One such alternative system of impartial adjudication has been proposed by me, Martin Howe QC, and Francis Hoar:

This proposal would create a symmetrical adjudication system between the EU and the UK, where each would have a central court – the ECJ within the EU and the International Treaty Tribunal (ITC) within the UK – reaching decisions in individual cases on the interpretation of the agreed provisions of any EU-UK separation and trade agreement. Under ordinary principles of international comity between courts of different countries which are interpreting common treaty provisions, it is to be expected that each court would pay respect to the decisions of the other and, although not bound to follow them, would seek to follow them wherever possible.

This system would mean that the occasions when a persistent divergence would arise between the interpretation of the treaty rights by the ECJ and by the UK’s ITC would be rare. To deal with such divergences, a bilateral international arbitral body (the EU-UK Treaty Tribunal) would be available at bilateral level, which would sit ad hoc and lay down binding rulings which would be followed by both the ECJ and ITC.

The proposed impartial adjudication would follow established international practice in that it is impartial and balanced in composition between the parties. It would respect both the ECJ’s position as the highest court with the EU as well as the UK’s post-Brexit status as an independent and sovereign subject of international law.

The above is an abridged version of Gunnar Beck’s The ECJ: An Imperial or Impartial Court? Adjudicating Treaty Rights After Brexit, recently published by Politeia.