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UK needs new dispute mechanism post-Brexit to replace Court of Justice

Posted: 1 May 2018

The European Court of Justice (CJEU) should not be allowed direct jurisdiction over the final deal Britain strikes with the EU, the Law Society of England of Wales warned today. 

“At the moment disputes are handled by the European Court of Justice (CJEU) and, as an EU member, we’ve had judges sitting in that court and UK lawyers representing clients,” said Law Society president Joe Egan.

“The jurisdiction will remain during any transition. However, once we leave we think the CJEU should be denied direct jurisdiction over the agreement because the UK will no longer have full participation in the court.”

Instead, in its new paper entitled Brexit: Options for a future UK-EU Dispute Settlement Mechanism, the Law Society is urging the government to create a new, bespoke, UK-based mechanism for resolving disputes. 

“The mechanism needs to apply right across the final deal. It should continue to grant access to individuals to enforce their rights and be there for business as well,” said Joe Egan. 

This can be modelled on the CJEU or the European Free Trade Area (EFTA) Court preliminary ruling system where national courts could refer cases to the court or appeal them under an appellate system. 

“Whichever route we go, both individuals and businesses must be able to access the process so their disputes can be resolved economically and speedily,” said Joe Egan. 

For now, EU law has direct effect and supremacy over our national law. That will cease to be the case when Britain leaves, with UK courts no longer bound by CJEU judgments.

Furthermore, as the Law Society is calling for an ambitious new arrangement between the UK and EU in trade as well as in judicial cooperation, there is a need for a new dispute settlement mechanism.

“The final deal between the UK and EU could have a clause which ensures our national courts take account of the decisions of the CJEU – this is something UK Prime Minister Theresa May has already signalled in her Mansion House speech,” said Joe Egan. 

Notes to editors

View our full paper

The CJEU oversees the correct application and implementation of EU law. It consists of judges from all member states. The UK has three judges, one in the Court of Justice and two in the General Court – the lower level court to the CJEU. Currently the UK also has an advocate general in the court who gives legal opinion on important cases. This opinion is influential though not binding.

The CJEU can hear cases from the national courts through the ‘preliminary ruling’ system. This involves a national court referring a question on interpretation of EU law. The CJEU decides on the correct interpretation and refers back to the national court for a final decision. 

The European Commission can also take a case against and EU state to the Court of Justice – this is so that the court can rule on whether the member state is in breach of its obligations to the EU. An EU state can also take another member to the court. Finally, the CJEU can perform a judicial review of EU law. During the transition / implementation period these processes will continue.  

On leaving the EU, after the transition / implementation period, UK courts can no longer refer cases to the CJEU. The commission cannot take infringement action against the UK. But even if we are outside the jurisdiction of the court we will still have to have convergence with EU standards if we are going to export into the EU or continue cooperation. This relates not only to trade, but importantly to the security cooperation or criminal justice, where the cooperation is based on exchange of individuals’ data or other information. These standards are ultimately ruled on by the CJEU. 

About the Law Society

The Law Society is the independent professional body that works globally to support and represent solicitors, promoting the highest professional standards, the public interest and the rule of law. 

Press office contact: Ben Davies | ben.davies@lawsociety.org.uk | +44 (0)20 7316 5592