The EU does not have an independent judiciary, its top court, the CJEU, is an arm of government and the judge of its own behaviour.
‘Nemo judex in causa sua’ is a Latin phrase that is usually translated as, “no-one should be a judge in his own cause.” This is among the basic principles of natural justice. The honourable judges of the Court of Justice of the European Union (CJEU) have shown themselves to be above natural justice and indeed any other law than their own.
In December the EUobserver published an opinion piece by Franklin Dehousse entitled, Are judges destroying transparency in EU institutions? (https://euobserver.com/opinion/143735) Dehousse is a former judge at the CJEU, so he knows the Court from the inside.
The European Parliament (EP) having refused a request from journalists to have access to documents about the fixed monthly expenses paid to MEPs, Dehousse requested the documents from the CJEU and was refused (see Expensives). The refusal was confirmed by the Court in a legal case brought by the journalists, and the EU Ombudsman confirmed the refusal. Dehousse points up the paradox in the Court’s approach: “As the definition and protection of personal data are broadened, the EU institutions communicate less and less, and transparency is slowly dying … As an example (there are many others), the court refuses to communicate any concrete element linked to the use of chauffeurs and cars by judges…”
So the judges have ruled in their own favour. It’s interesting to note how far up the EU hierarchy the judges sit. From Article 101 of the draft Withdrawal Agreement (14/11/2018 page 171):
For the purposes of this Title, “members of the institutions” means, irrespective of their nationality, the President of the European Council, the members of the European Commission, the Judges, the Advocates-General, the Registrars and the Assistant Rapporteurs of the Court of Justice of the European Union… [continuing with an impressive list of functionaries, which] does not include members of the European Parliament.
So the only thing in the EU to which citizens elect people, the Parliament, is definitely not an ‘institution’, which means that its representatives are irrelevant or the European Parliament is, or both. Judges must hold the line while MEPs may challenge it: to the EU judges matter, MEPs don’t.
Judges are entitled to claim expenses (or to be paid them without claiming, as MEPs are). Ruling that documents concerning their expenses cannot be accessed, other than under almost impossible conditions, the judges have protected themselves from scrutiny; and have done so without apparent embarrassment.
This has indirect but severe implications for Brexit. In our post on the Chequers White Paper we wrote:
In her Foreword the Prime Minister refers to the result of the referendum vote for the UK to leave the EU. She says, “And that is what we will do – leaving the Single Market and the Customs Union, ending free movement and the jurisdiction of the European Court of Justice in this country…”
The EU has made it clear, beyond any doubt, that it expects everything to be tied up in law and so subject to the remit of the European Court of Justice (ECJ). A ‘red line’ for the EU is that the ECJ should have jurisdiction over all EU laws and agreements; a red line for the UK (unless it goes pink in subsequent ‘negotiations’) is that the UK should be free of the dominance of the ECJ over its own courts.
It seems that the UK’s red line has been washed out. Despite the PM’s promise, the continuing role of the CJEU is enshrined in the draft Withdrawal Agreement. (We reviewed this in some detail in Draft Withdrawal Agreement: a Fatal Flaw.) This is the document that Mrs May is busy trying to sell to the UK Parliament.
Articles 109, 110 and 122 contain the following: “(b) …after the end of the transition period in connection with activities of the Union pursuant to this Agreement” which, once again, confirms the continued jurisdiction of the ECJ beyond the transition period, since their judges will retain the right to decide what activities of the Union are pursuant to the Withdrawal Agreement.
For example, from Article 110:
Article 11(a) of the Protocol on the Privileges and Immunities shall apply in the United Kingdom in respect of acts performed, including in respect of their words spoken or written, by members of the institutions, officials and other servants of the Union, including former members, former officials and former other servants, of any nationality, in their official capacity:
(a) before the end of the transition period;
(b) after the end of the transition period in connection with activities of the Union pursuant to this Agreement.
We can forget British Common Law and its basis in precedent; the ECJ will continue to decide for us. The ECJ is mandated to make judgments that further the intentions (as they interpret them) of the EU treaties. This justice is therefore prejudiced (pre-judged) in favour of the EU, whereas under UK law it is possible to challenge the authorities and hope to win the case.
There are many reasons why Parliament (and the rest of us) should reject the proposed withdrawal agreement. Here are two more:
From Article 87
- If the European Commission considers that the United Kingdom has failed to fulfil an obligation under the Treaties or under Part Four of this Agreement before the end of the transition period, the European Commission may, within 4 years after the end of the transition period, bring the matter before the Court of Justice of the European Union … The Court of Justice of the European Union shall have jurisdiction over such cases.
From Article 89
- Judgments and orders of the Court of Justice of the European Union handed down before the end of the transition period, as well as such judgments and orders handed down after the end of the transition period in proceedings referred to in Articles 86 and 87, shall have binding force in their entirety on and in the United Kingdom.
We know that politicians have brass necks but surely someone else has spotted the contradiction between all this and the Prime Minister’s claim that under this would-be agreement Britain will be “ending…the jurisdiction of the European Court of Justice in this country”.
Here is Jean-Claude Junker in his State of the European Union 2018 (just last September):
“But we need to be very clear on one point: judgements from the Court of Justice must be respected and implemented. This is vital. The European Union is a community of law. Respecting the rule of law and abiding by Court decisions are not optional.”
Hardly anyone could disagree with respecting the rule of law, as a generalisation. But many, not least in the UK, would disagree that the European Court of Justice is a proper recipient of such respect. Parliament should not put the country under the jurisdiction of this suspect Court.
Here is what we concluded in The World’s Favourite Law:
In England the courts regularly find in favour of parties against the government. The reputation of English courts for their independence, their expertise, and the commercial knowledge of its judges will be unaffected by the UK’s vote to leave the European Union. Brexit could lead to English law becoming even more attractive as the law of choice as the UK would no longer be required to incorporate those aspects of EU law that differ from our evolved, common law as we have described. English law offers stability and certainty, which won’t change because of Brexit.
If we get a real exit.