UK says European court won't have direct control post-Brexit

The UK government said on Wednesday the Luxembourg-based European Court of Justice (ECJ) would no longer have direct jurisdiction over British laws when the country leaves the European Union (EU), expected in March 2019.

In its latest position paper ahead of a third round of Brexit negotiations next week, the government proposed new alternative arrangements. Some allow the ECJ a role.

That brought claims UK Prime Minister Theresa May reversed from previous statements.

After Brexit, the European and UK courts will be independent of each other, the government said. The ECJ is the EU's highest court.

"Rights and obligations will be enforced by the UK courts and ultimately by the UK Supreme Court," it said.

"UK individuals and businesses operating within the EU should similarly be provided with means to enforce their rights and obligations within the EU's legal order and through the courts of the remaining 27 member states."

Britons voted in a referendum on June 23, 2016, to leave the EU.

May triggered Article 50 of the Lisbon Treaty in March. That set off the process of negotiation, to a two-year deadline, to complete talks with the bloc about the terms of withdrawal.

Among the options to direct ECJ primacy, the government suggested the setting up of a joint committee of both parties and cited the North American Free Trade Agreement as an example.

An arbitration model, such as the one included in the EU's trade deal with Canada, is another alternative, the government said.

ECJ  decisions made before or after Brexit can be taken into account when disputes are resolved if agreements between the UK and EU "replicate language which is identical in substance to EU law", the government said.

May said in her Brexit speech on January 17 that leaving the EU would mean UK laws would be made in Westminster, Edinburgh, Cardiff and Belfast. They would be interpreted by "judges not in Luxembourg but in courts across this country".

Keir Starmer, in charge of Brexit issues for the opposition Labour party, said Wednesday's position paper was a climb-down from that earlier stance.

"The repeated reference to ending the 'direct jurisdiction' of the ECJ is potentially significant," Starmer said on Labour's website.

"This appears to contradict the red line laid out in the Prime Minister's Lancaster House speech and the government's white paper, which stated there could be no future role of the ECJ and that all laws will be interpreted by judges in this country."

The UK government also raised the possibility of creating an independent supervisory authority.

As an example, it cited the Surveillance Authority of the European Free Trade Association, through which Iceland, Liechtenstein and Norway participate in the EU's Internal Market.

Speaking to Reuters this month, EFTA court President Carl Baudenbacher said it "would certainly be possible" that his institution could be a choice for the UK, rather than the ECJ.  

In other position papers this week, the UK said it would seek an "interim period" as it moves to a new legal arrangement with the EU as part of Brexit.

In two other papers, it set out negotiating starting points for the areas of goods on the market – where it wants "the freest and most frictionless trade possible in goods and services" – and the confidentiality of documents. 

Last week, the government said it would not seek a 'hard border' between Northern Ireland and the Republic. That would mean no passport controls or immigration checks.

It separately raised the idea of a "temporary customs union" with the EU after leaving the bloc.

(Alistair Holloway, alistair.holloway@wort.lu, +352 49 93 739)