European Court of Justice (ECJ)’s Jurisdiction

Michel Barnier is the name of the man conducting the EU side of the Brexit negotiations. He has given particular emphasis to insisting on the ECJ having a continuing role in Britain after Britain withdraws from the EU on March 29th 2019, particularly with respect to EU nationals living in Britain at the time.

The Daily Telegraph correspondent in Brussels did well to ask Michel Barnier at his joint press conference with David Davis on the 20th July to name any country that  accepted foreign jurisdiction on its territory. Not surprisingly Barnier couldn’t answer because there are none, not even from among the smallest countries in the United Nations, apart from those in the EU.

As pointed out in a letter to the Daily Telegraph on July 24th by Stephen Bush, there are about 2 million  EU nationals  resident in Canada (excluding British citizens) and 1.6 million EU nationals  resident in Australia, together actually more than are resident in the UK (3.2 million). There is no provision in the recent EU-Canada Trade agreement for  the European Court of Justice to have jurisdiction over the rights of its citizens resident in Canada nor did the EU negotiators ask for any. Nor would Australia countenance such an infraction of its sovereignty. It is high time that Mr. Davis (Britain’s chief negotiator) said in public that the ECJ will  not have any jurisdictional role in the United Kingdom after we have formally left the EU, so that negotiations can move on to more productive matters.

Why is Barnier pushing the ECJ role in Britain after Brexit?

This insistence on the ECJ’s role is so preposterous that one wonders why Barnier is making it at all. One answer is that it is a typically hostile French negotiating ploy whereby he can back down later claiming that the EU has shown flexibility and Britain should reciprocate on other matters, for instance by continuing to pay indefinitely for “access” for our goods to the EU’s “single” market (which is bound to come up).

Barnier needs to be told now that such a ploy won’t work: the UK is not going to trade a fictional claim by the EU like the ECJ having authority over EU citizens in Britain for a real thing like hard cash.

If EU citizens living in Britain don’t like living under the rule of British judges, they can remigrate to their own countries where they can live under the ECJ.

If Mr Davis, Mrs May, Liam Fox, Boris Johnson, need to bolster their arguments at any point, let them think what the other ABCANZ countries would accept[1].

Actually the whole attitude of the UK negotiation needs to be recast completely as set out in Stephen Bush’s book, which can be read in full elsewhere on this website. Chapter 11 specifies the qualities of the individuals leading our negotiations:

  1. Absolute commitment to an Independent Britain;
  2. Brains;
  3. Determination;

which, as noted will on the first criterion at least rule out the Treasury.

Britain not a supplicant

Above all, the UK negotiating team, the British Cabinet, especially Philip Hammond the Chancellor of the Exchequer, and corporate bosses like the CBI, need to understand that Britain is not a supplicant: it just wants what the EU has freely negotiated recently with other independent countries in the Free Trade Agreements with Korea (2011) and Canada (2016), with the added advantage for both sides that the UK-EU FTA is in place already with zero tariffs and common trading standards.

Karl de Gucht, EU trade commissioner 2010-2014 said during the stalled WTO tariff reduction negotiation at Doha in 2012, that the EU is committed (his word) to all measures to increase international trade.

Applied to Britain this remark is a particular instance of what is in the Lisbon Treaty (article 47):

“The Union (i.e. the EU) shall develop a special relationship with neighbouring countries aiming to establish an area of prosperity and good neighbourliness (sic) founded on the values of the Union and characterised by close and peaceful relations based on cooperation.”

A fine sentiment – let’s hold them to it.


[1] ABCANZ – the five great English-speaking democracies bonded by language, kith & kin, and in practical terms by Echelon, the world’s most comprehensive intelligence system, and by the constant flow of military exchanges of personnel.

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