The European Free Trade Association Court could offer an alternative to the European Court of Justice—one that Brexiteers might just acceptby Alex Dean / October 15, 2017 / Leave a comment
One of the most pressing Brexit challenges facing the UK government—and there are plenty of them at the moment—concerns the future role of the European Court of Justice, the supreme tribunal of EU law across the Union as a whole (and top court in the confusingly-named Court of Justice of the European Union.) Despite recent announcements intended to clear things up the government remains in a downright mess over the ECJ.
The problem is that Brexit Britain will still need a dispute resolution mechanism with the EU. We could accept ECJ jurisdiction as we do now—but Eurosceptics want nothing to do with the Luxembourg court. For those fixated on indivisible sovereignty this is the reddest of red lines. The PM conceded this week that the ECJ could arbitrate during the transition period, but even if she can convince her rowdier backbenchers to back temporary membership, there’s little chance she’d even attempt to convince them to stick with it long-term. The Brexit vote is interpreted as Britain voting to reclaim control over its own laws.
The fundamental questions over the Luxembourg Court and what comes next remain entirely unsolved. If we want to trade as part of a European rules-based order, then we need an agreed referee to interpret those rules, but it’s increasingly looking like we’re going to reject the referee already on the pitch. So what to do?
Some in the know believe that membership of the European Free Trade Association Court could offer a way out. The EFTA Court—also based in Luxembourg—was set up in 1994 and is responsible for Iceland, Liechtenstein and Norway, members of the European Economic Area but not the EU. Significantly, it also follows ECJ jurisprudence—but as a separate court the government might just be able to sneak UK membership past the Brexiteers.
And it’s not just being discussed over here. There is a possibility that in future, “Britain may have a judge on the EFTA Court bench,” the Court’s President Carl Baudenbacher told me.
“The EFTA Court… works in English. Its own principles are influenced by the British inspired EFTA tradition of free trade”