LUXEMBOURG (CN) – Though the political campaign surrounding Brexit focused heavily on taking back control, the United Kingdom will remain subject to the European Union’s highest court at least in the short term.
The U.K. is formally leaving the 28-member political and economic union as of 11 p.m. London time on Friday, but that only starts an 11-month transition period during which, practically speaking, little changes for the U.K.
“Mostly it will feel like the U.K. is still in the EU,” said Joris Larik, assistant professor of comparative, EU and international law at the Leiden University in the Netherlands.
The Brexit referendum took place in June 2016 and it wasn’t until October 2019 that the British government finally approved a withdrawal agreement.
The deal was formally accepted by the EU on Thursday and settles some topics, such as money the U.K. owes to the EU and the rights of citizens. But most issues are not yet settled and the two sides have until the end of 2020 to sort out a complicated list of matters, including the role the EU’s highest court will play in the U.K.
The EU High Court
Located in Luxembourg City, Luxembourg, the Court of Justice of the European Union began its life as the Court of Justice of the European Coal and Steel Community. The predecessor of the EU, the European Coal and Steel Community ceased to exist in 2002, having been totally absorbed into the newly created EU.
The judicial body of the EU consists of two courts, the lower General Court and the higher Court of Justice, though each have some separate administrative functions. Individuals, companies, and countries can bring cases to the Court of Justice and national courts of any of the member states can refer questions involving EU law as well.
The U.K.’s departure on Friday evening does have one very immediate impact on the court. The terms of Judge Christopher Vajda on the Court of Justice and Judge Ian Forrester on the General Court, who were appointed to the courts by the British government, come to an immediate end.
“The withdrawal of the U.K. from the European Union signifies the disappearance of the posts occupied by the U.K. nominated judges,” the Court of Justice said in a statement.
Eleanor Sharpton, the British advocate general at the Court of Justice, is unaffected by Brexit as her position isn’t dependent on a member state. Advocate generals serve as advisers to the court.
EU law applies to the U.K. during the transition period as it has since the U.K. joined the bloc in 1973.
If the U.K. and the EU disagree about aspects of the withdrawal agreement, those issues will be resolved by arbitration.
“The text covering this in the withdrawal agreement is basically the same as in trade agreements the EU has with other countries,” said Raphael Hogarth, an associate at the Institute for Government, a British think tank.
However, if any of those disputes involve EU law, they must be referred to the Court of Justice.
“The EU doesn’t like farming out interpretation of EU law to other tribunals,” Hogarth said.
For the remainder of 2020, pending cases at the Court of Justice involving the U.K. will move forward.
“Efforts will be made to wind up the cases before the transition period ends,” said Anthony Arnull, professor of European law at the University of Birmingham. He added that national courts in the U.K. are already referring fewer cases to the EU high court in anticipation of Brexit.
The Court of Justice also has a particular role to play with regard to the issues surrounding Northern Ireland. While England, Scotland, and Wales, three of the countries that make up the U.K., are joined on one island, the fourth country, Northern Ireland, is part of a second island, together with the Republic of Ireland.
Ireland is an EU member state and will remain so, but the border between Ireland and Northern Ireland is contentious. The Good Friday Agreement – a peace deal between pro-British and pro-Irish forces in Northern Ireland that ended a 30-year violent conflict that left 3,500 people dead – calls for an open border between the countries.
But if Ireland is in the EU and Northern Ireland, as part of the U.K., is out of the bloc, the EU requires customs checks and other border controls normally found at international boundaries.
The issue was hotly contested over the past few years in the U.K. and many aspects are still not resolved. Disputes that arise over the Protocol on Ireland and Northern Ireland, the portion of the Brexit withdrawal agreement that deals with the border between those two nations, could land in the Court of Justice.
As EU citizens have enjoyed decades of free movement between member countries, many British citizens have moved to other European countries and vice versa. The U.K. Home Office estimates that 784,000 British citizens are currently living in another EU country, while 2.9 million EU citizens call the U.K. their home.
The rights of both of those groups have been a major concern for governments across the EU, and the withdrawal agreement gives the Court of Justice the jurisdiction to hear complaints from EU citizens living in the U.K. as they relate to citizenship for eight years following the U.K.’s departure.
According to Hogarth, these can include issues like entitlements to state benefits, pensions and immigration status.
British citizens living in the EU will be able to direct their complaints to the national courts where they live. However, as they are no longer EU citizens, it’s unclear what legal framework will apply.
The EU high court hasn’t just left its mark on the U.K. – the U.K. has left its mark on the court as well. Most European countries follow the civil law tradition, which puts an emphasis on statutes as they are written. The U.K., however, follows the common law tradition, which also incorporates legal precedent into decision-making.
Over the years, decisions at the Court of Justice reference previous rulings more heavily and now incorporate more of their case law into decisions.
“I think that’s a direct result of U.K. membership,” Arnull said.
Though a withdrawal agreement has been signed, what the future holds for the relationship between the U.K and the EU is unclear. Many of these questions will be decided over the course of 2020.
“The role of the Court of Justice depends on the nature of the agreement,” Hogarth said.
The more access the U.K. wants to the internal EU market, the more regulation the EU will want the U.K to accept. That could mean a bigger role for the Court of Justice in British affairs, but at this point no one knows for certain.
While the transition period is set to end on Dec. 31, 2020, it can also be extended for up to two years. Even when Brexit is done, it’s not quite done.