Decoding the Government’s Plan for Brexit: Judicial Cooperation – Part 2

Posted in Dispute resolution and litigation Enforcement UK and EU legal framework

The future role of the CJEU is one of the most intractable problems in the Brexit negotiation. The UK Government’s Future Partnership Paper on Providing a cross-border judicial cooperation framework has three key paragraphs that address this issue (see Part 1 of this post for discussion of another aspect of this Paper).

The Paper states that the UK will seek an agreement on cross-border jurisdiction that allows for close and comprehensive cross-border civil judicial cooperation on a reciprocal basis. This implies that – as is the case now – courts in different countries will respect each other’s decisions on jurisdiction and apply a single set of rules consistently. And this in turn implies that there is some mechanism to guarantee consistency and to correct decisions that stray from the correct interpretation.

At present, this mechanism is the CJEU. All national courts are subject to the jurisdiction of the CJEU on questions of EU law – individual decisions can be referred from national courts to the CJEU and all national courts are obliged to follow rulings of the CJEU. For instance, the English court was overruled by the CJEU on anti-suit injunctions and has since been unable to grant them (within Europe).

If this mechanism no longer exists after Brexit, how can courts cooperate consistently? There are three possibilities:

  • UK courts and EU courts operate in parallel, with the stated intention of achieving consistency and taking each other’s decisions into account, although acting independently. This accepts a certain risk of inconsistency.[1]
  • One court remains subject to the other. In practice, this would mean that the English courts would still be subject to decisions of the CJEU. There may also need to be a continuing procedure for referral of English cases to the CJEU.
  • A new judicial body is established to arbitrate on points of disagreement between English and EU Member State courts. This could be an existing body such as the EFTA court or a new entity formed specifically to enforce judicial cooperation.

One of these options will be a fundamental part of any reciprocal cross-border agreement, but the Paper does not set out which one is preferred by the Government.

The Paper does contain an extensive tribute to the UK courts, emphasising their clarity, independence and international renown, all of which will be unaffected by Brexit. Perhaps this is meant to suggest the first option above – EU and UK courts operating in parallel. If the UK courts are so internationally respected, the argument runs, then they can be trusted to operate any international agreement in concert with EU courts.

However, parallel courts are contrary to how the cross-border regime currently operates. The Paper flirts briefly with this difficulty, stating that “the UK and the EU will need to ensure future civil judicial cooperation takes into account regional legal arrangements, including the fact that the CJEU will remain the ultimate arbiter of EU law within the EU”.  This appears to concede something to CJEU superiority, but it is not clear whether any future arrangement will respect the primacy of the CJEU as ‘ultimate arbiter’ or envisage it working alongside another supra-national judicial body.

Overall, the Paper invites speculation as to the future role of the CJEU and the UK courts in any future reciprocal arrangement on judicial cooperation without supplying any clarity as to which of the three possible solutions the Government favours.

[1] This is effectively what has been proposed with regard to the rights of EU nationals in Theresa May’s Florence speech.

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