What Courts After Brexit?

It is difficult to overstate the case why the ECJ is neither an impartial nor a conventional court.

From the outset in the early 1960s the ECJ developed a range of principles which it then expanded into the general principles of the supremacy and direct effect of EU law over national law. None of these judge-made principles had any basis in the EU Treaties; they are judicial creations which have been accepted and applied by national courts and governments because they suit the integrationist agenda of most EU politicians and senior judges. National courts and governments do not oppose the ECJ, because ECJ judicial activism allows integrationist governments to impose on their countries what most of their electorates would not accept voluntarily, ‘ever closer European union.’

Central to the problem of judicial activism in the ECJ is the court’s unique approach to treaty interpretation which is unlike that of any other international court. The general principles of treaty interpretation are laid down in the Vienna Convention on the Laws of Treaties (VCLT). Article 31 VCLT assigns a primary importance in treaty interpretation to the ‘ordinary meaning’ of words. It states that treaties shall be interpreted in ‘good faith’ and that their terms should mean what they say unless, according to Art. 32 VCLT, the meaning is genuinely ‘ambiguous or obscure’ or ‘manifestly absurd’. The EU is not a party to the VCLT. However, Article 5 VCLT makes clear that the Convention applies to the EU Treaties just as it applies to all other treaties. Article 5 states: “The present Convention applies to any treaty which is the constituent instrument of an international organization and to any treaty adopted within an international organization without prejudice to any relevant rules of the organization.” In manifest breach of this provision the ECJ has never regarded itself as bound by the terms of the VCLT and it does not apply the methods of treaty interpretation contained in Articles 31 and 32 VCLT.

Unsurprisingly, in interpreting EU law the ECJ does not therefore accord the same primacy to the ordinary meaning of words as most other international courts including the ICJ or the WTO Appellate Body. Instead the ECJ adopts an ultra-flexible approach which allows the ECJ to choose between various non-hierarchical interpretative criteria – literal, contextual, purposive and meta-teleological – and to give the greatest interpretative weight to whichever criterion best promotes a pro-EU outcome to the case. For instance, this approach allows the ECJ to depart from the wording of the EU Treaties or legislation in favour of a teleological, i.e. purposive, interpretation even where the wording of the relevant provision is neither obscure nor ambiguous nor lead to an absurd outcome. Purposive interpretations generally give courts far greater interpretative room for manoeuvre than text-based interpretations. Specifically, the problem with purposive interpretations of law is that courts, and the ECJ more so than any other court, do not confine themselves to purposes written into the documents they are asked to interpret.

In fact the ECJ was set up to act as an arbiter between the EU and its Member states but it has never been a real arbiter who applies agreed rules impartially. Once the UK leaves the EU and no longer has either a judge or Advocate-General on the court, the ECJ will accord the UK even less respect than it has done so during the time of British EU membership. The ECJ, let there be no doubt, is particularly unsuited to the task of impartial adjudication on bilateral treaty obligations assumed by a non-Member state.

 

Dr Gunnar Beck MEP

Dr Gunnar Beck is a barrister, legal philosopher and academic lawyer who specialised in German and EU constitutional law at SOAS, University of London and at 1 Essex Court prior to his election to the European Parliament in 2019. He is author for Politeia of The ECJ – An Imperial or Impartial Court? Adjudicating Treaty Rights After Brexit? (2018).

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