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What will the role of the CJEU be in the final Brexit agreement?

The European Court of Justice (CJEU) is going to be paramount throughout the Brexit process

The latest round of negotiations confirmed that after Brexit the UK will apply UK law in a way that is consistent with EU Law. But there was failure to agree on the role of the CJEU. The EU has clearly stated that the CJEU must play a central role in ensuring this consistency. The UK does not agree.

This is a “stumbling block” for the EU.


The CJEU continues to be a major issue for both parties. The CJEU was a centras campaigning principal for the Brexiters. The UK does not want to be answerable to EU courts and wants the UK Supreme court to be “the ultimate judge of UK laws”.

 

It will be difficult to see how there will be any compromise when both sides are taking fundamental objections to the role(s) of the CJEU.

CJEU and Free Trade Agreements

The news gets worse for the UK. European Union trade deals must be ratified by all member states, the EU's highest court ruled.

The UK hopes to win a fast-track trade deal with Europe after it negotiates its divorce from the EU but the decision by the European Court of Justice could scupper that plan.

In a closely watched decision, the EU court said that any trade deal that includes a non-court dispute settlement system would require ratification by the EU's 38 national and regional authorities. Some of the authorities might need to hold a referendum.

"It follows that the free trade agreement can, as it stands, only be concluded by the EU and the Member States jointly," the court said in a statement. The decision applied to an EU-Singapore treaty signed in 2013, but will stand as key jurisprudence for future trade deals including any deal with the UK.

The judgment can be seen here:

https://curia.europa.eu/jcms/upload/docs/application/pdf/2017-05/cp170052en.pdf

"The free trade agreement with Singapore cannot, in its current form, be concluded by the EU alone.

The provisions of the agreement relating to non-direct foreign investment and those relating to dispute settlement between investors and States do not fall within the exclusive competence of the EU, so that the agreement cannot, as it stands, be concluded without the participation of the Member States."

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