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Research: UK rarely brought before ECJ and enjoys highest success rate when it does

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Food for thought as Brexit talks on future relationship reach fever pitch

New data reveals that, despite the public’s fraught relationship with the European Court of Justice (ECJ), the United Kingdom finds itself before its judges far less than most countries do.

The Institute for Government research compares the UK’s relationship with the ECJ to the 14 other Member States who joined before 2000. These are: Austria, Belgium, Denmark, Finland, France, Germany, Greece, Ireland, Italy, Luxembourg, the Netherlands, Portugal, Spain and Sweden. This is to avoid anomalous results, the report says.

When compared to these 14 countries “the UK rarely ends up in the dock”. There were 63 actions against the UK between 2003-2016. The average number among all Member States is 102, though certain countries, such as Italy and Greece, scored far higher with 191 and 185 respectively. “Only the Scandinavian Member States are taken to court by the Commission less often than the UK,” the report adds.

Graph via the Institute for Government

The report also says that, when the UK is in court, it has a pretty good chance of winning. The UK has a “success rate” of 25%, “by far the highest success rate of any Member State in [the] study, and the third highest of all 28 Member States”. By way of comparison, Italy’s score is 8%, Ireland’s is 10% and Germany’s 16%. Luxembourg’s is the lowest at just 3%. A credit to the UK, “a good international citizen which meets its obligations” — and its lawyers.

Readers may be shocked by the UK’s relatively high ECJ success rate given the tensions between the two institutes. The government has said the June 2016 vote to leave the European Union will “bring about an end to the direct jurisdiction” of the ECJ and to some this is a red line issue. Yet latest reports suggest the possibility of the ECJ retaining a role in interpreting EU law is on the table. The current squabble is for what length of time after exit day this should be: the EU says 15 years, the UK says five.

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While the disagreements continue, the House of Lords has announced its EU Justice Sub Committee has launched a formal inquiry into the potential role for the ECJ post-Brexit.

This launch follows a Committee evidence-giving session with four retired judges, a full write-up of which can be accessed on Legal Cheek, which the Committee’s chairman said “highlighted the dangers of legal uncertainty post-Brexit”. Baroness Kennedy, who is a barrister at Doughty Street, continued:

“Going forward, the government will have to ensure that it can agree a clear, certain and robust enforcement mechanism to ensure that any rights and obligations under the withdrawal agreement (and subsequent partnership arrangements with the EU) can be upheld in the event of a dispute. The Committee is seeking expert evidence on the most appropriate way of ensuring that dispute resolution procedures post-Brexit can be dealt with efficiently and effectively.”

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9 Comments

Anonymous

Cases rarely reach the Supreme Court in this country – the only court obliged to request a preliminary reference from the CJEU.

Anonymous

Which has never stopped lower courts, even down to first tier tribunal levels, from making references.

Anonymous

Not true. Any court of last instance must refer. If leave to appeal is refused, then that is the point at which a referral should have been made (barring acte clair/acte eclaire).

Ciaran Goggins

Due to two reasons, UK delays as much as possible (and then some). UK avoids losing by implementing half baked legislation at 11th hour.

Anonymous

While I’m an EU supporter, this data doesn’t indicate that the CJEU isn’t making its presence felt in the UK. It could just indicate that the UK is more sensitive to what is going on in EU jurisprudence, and preempts problems with the proper implementation of legislation.

Anonymous

Far from showing our relationship with the EU in a positive light, this article illustrates one of the big problems with it.

Some member states, like the UK, implement all or nearly all directives and regs by the deadlines. And they then enforce them. This carries big costs for business, consumers and taxpayers.

But it does mean we get dragged in front of the CJEU relatively rarely.

However, many states just implement what suits them and ignore enforcement of those measures they are forced into implementing. The Italians and Belgians are shocking for this, and the French record isn’t great either. These countries don’t care very much about EU legal process: that can generally be ignored for years too.

Anonymous

The main problem with this argument is that what you illustrate is true of every field of law: some will try to dodge around it or just ignore it.

We know this, because we know that firms are still being prosecuted for paying below the minimum wage, and international firms (and the rich) attempt to dodge their obligations.

None of this means that we should abandon the law, it just means that we need better enforcement. As ever, in the anti-EU tide, this isn’t a problem specific to the EU. No one ever said the EU was Utopia, it is, however, better than the alternatives. A point all the Brextremists seem to miss.

Anonymous

What would be interesting further reading is knowing what the subject matter of the cases the UK is involved in are, is there a pattern? Is there insight hidden between the arguments that gives us an idea what the UK Gov’s general policy towards these matters is? I suppose I’m confusing this with Private Eye.

Anonymous

“Highest Success Rate When It Does”. Does what? When it’s done brought before the ECJ? Does that make any sense? Do you ever proofread anything?

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