Chapter 2: Background
The role of the Court of Justice of the European Union (CJEU)
13.The CJEU is the judicial organ of the European Union and is entrusted with the task of upholding the rule of law. It reviews the legality of the acts and omissions of Member States and of the EU institutions and interprets EU law at the request of Member States’ national courts. Article 19(1) TEU provides that the CJEU “shall ensure that in the interpretation and application of the Treaties the law is observed”, and that “Member States shall provide remedies sufficient to ensure effective legal protection in the field covered by Union law”.
14.The same Article also provides that the CJEU has three components: the Court of Justice (which is also often referred to as the European Court of Justice, or ECJ); the General Court (previously the Court of First Instance) and a specialised court (the Civil Service Tribunal—which is currently being disbanded).2
15.The Court of Justice consists of 28 judges (one from each Member State) and 11 Advocates General (who deliver independent opinions in cases that raise new questions of law). The current UK judge at the Court of Justice is Christopher Vajda QC. He was re-nominated in September 2017, but is expected to leave the Court post-Brexit.3 The UK also has an Advocate Generate at the Court (Eleanor Sharpston, QC) and a judge at the General Court (Ian Stewart Forrester QC). In the interests of brevity, throughout this report we simply use the term CJEU without distinguishing between its component parts except where necessary.
16.The CJEU considers two main types of proceedings: direct actions4 and references for a preliminary ruling.5 The former are brought directly before the Court of Justice or General Court and are dealt with entirely by those courts; whereas the latter proceedings are begun in a national court. In short, where a national court of a Member State encounters a question on the interpretation or validity of EU law it may (or sometimes is obliged to) make a preliminary reference to the Court of Justice. Once the Court of Justice makes a preliminary ruling on the specific issue of EU law, the national court will apply the ruling to the facts of the case and determine the dispute between the parties.
17.The Institute for Government (IfG) produced a report in December 2017, which sought to chart the UK’s relationship with the CJEU.6 It concluded that the number of actions brought against the UK before the CJEU is well below the European average. Of the 15 Member States considered, only the Scandinavian states were “taken to court by the Commission less often than the UK”. It also noted that “the UK also ends up in court less often than it used to”, and that when the UK does end up before the CJEU “it wins more often than most other member states”. The study concluded that when considering Commission actions against the UK, “cases on the environment are the most likely to end up in court”.7
18.The IfG also considered the cases that the UK courts referred to the CJEU, noting that approximately two cases per year concerning citizens’ rights have been referred from the UK courts to the CJEU in recent years, and that such cases “represent a reasonably small proportion of UK references”.8
What sort of disputes may arise after Brexit?
19.The Government acknowledges that, post-Brexit, there are several ways in which a dispute might arise between the UK and the EU. These include:
(a)Implementation: where one party considers that the other has not appropriately or properly implemented the agreements, for example in domestic law;
(b)Subsequent actions: where one party considers subsequent legislation, executive actions, or decisions of the other party to be incompatible with the obligations under the agreements;
(c)Divergence: the way in which the agreements, or implementing legislation, is interpreted by the parties’ respective courts, or other bodies or agencies, has diverged in areas where the parties have agreed to seek to avoid divergence.9
20.In addition to potential EU-UK disputes, private actors, including individuals and companies, can currently take enforcement action where they are able to invoke violations of EU law before the national courts and also seek referrals to the CJEU. Private actors can also take actions against Member States for damages—so called Member State liability—if a Member State has committed a serious breach of EU law that has caused that damage. Thus, as Dr Tobias Lock (a senior lecturer at the University of Edinburgh) observed, private actors play “a very important part in the enforcement of EU law”.10 The Government will have to determine what role private actors will have in any new regime.
The European Council’s draft guidelines
21.The European Council’s draft guidelines following the UK’s notification under Article 50 were published in March 2017. The guidelines were designed to define “the framework for negotiations under Article 50 TEU and set out the overall positions and principles that the Union will pursue throughout the negotiation”.
22.The guidelines set out a series of core principles, including the fact that:
“A non-member of the Union, that does not live up to the same obligations as a member, cannot have the same rights and enjoy the same benefits as a member. In this context, the European Council welcomes the recognition by the British Government that the four freedoms of the Single Market are indivisible and that there can be no ‘cherry picking’.”
23.On the question of the CJEU, and dispute resolution more generally, the guidelines said:
“Arrangements ensuring legal certainty and equal treatment should be found for all court procedures pending before the Court of Justice of the European Union upon the date of withdrawal that involve the United Kingdom or natural or legal persons in the United Kingdom. The Court of Justice of the European Union should remain competent to adjudicate in these procedures. Similarly, arrangements should be found for administrative procedures pending before the European Commission and Union agencies upon the date of the withdrawal that involve the United Kingdom or natural or legal persons in the United Kingdom. In addition, arrangements should be foreseen for the possibility of administrative or court proceedings to be initiated post-exit for facts that have occurred before the withdrawal date.
“The withdrawal agreement should include appropriate dispute settlement and enforcement mechanisms regarding the application and interpretation of the withdrawal agreement, as well as duly circumscribed institutional arrangements allowing for the adoption of measures necessary to deal with situations not foreseen in the withdrawal agreement. This should be done bearing in mind the Union’s interest to effectively protect its autonomy and its legal order, including the role of the Court of Justice of the European Union.”11
Government’s starting point
24.In August 2017, the Government published a Future Partnership Paper entitled Enforcement and Dispute Resolution (‘the Paper’). In the Paper, the Government spelled out clearly that “in leaving the European Union, we will bring about an end to the direct jurisdiction of the Court of Justice of the European Union (CJEU)”.12
25.The Government accepted that “it is in the interests of both the UK and the EU—and of our citizens and businesses—that the rights and obligations agreed between us can be relied upon and enforced in appropriate ways”.13 Dispute resolution procedures are integral to this and therefore the UK and the EU “need … to agree on how both the provisions of the Withdrawal Agreement, and our new deep and special partnership, can be monitored and implemented to the satisfaction of both sides, and how any disputes which arise can be resolved”.14
26.The Paper acknowledges that following the UK’s withdrawal, “the CJEU will continue to interpret EU law and be the ultimate arbiter of EU law within the EU and its Member States”.15 It also recognises a potential problem: namely that the EU’s position is that “there are limitations, under EU law, as to the extent to which the EU can be bound by an international judicial body other than the CJEU”. This issue will be addressed in Chapter 3.
27.The Paper notes that there are several existing precedents where the EU has reached agreements with third countries, which provide for a close co-operative relationship without the CJEU having direct jurisdiction over those countries:
“[M]any EU free trade agreements with third countries include provisions on resolving disputes through a binding arbitration model in addition to mechanisms for political agreement. Examples include the EU-Canada Comprehensive Economic and Trade Agreement (CETA), the EU-Singapore Free Trade Agreement as well as the Ukraine and Moldova Association Agreements. There are currently no precedents for the CJEU to act as the means of enforcing an international agreement between the EU and one or more third countries.
“Even where agreements refer to terms or concepts in EU law, those agreements can be enforced or interpreted outside the EU by means other than the CJEU. This can be through political bodies, or through judicial or quasi-judicial bodies. For example, under the European Economic Area (EEA) Agreement, the European Free Trade Area (EFTA) Court can interpret and enforce the agreement, which includes terms and concepts of EU law, in the EFTA States that are within the EEA. The EFTA Court does not bind the EU or its institutions, and so the model is compatible with EU law.”16
28.While the Paper helpfully set out some further details of these various models, it did not give any clear expression of the Government’s preferred option.
29.Moreover, the Government’s ‘red line’ in respect of future CJEU jurisdiction is subject to two provisos. First, the Paper acknowledged that it might be possible for “account … to be taken of CJEU decisions … where there is a shared interest in reducing or eliminating divergence in how specific aspects of an agreement with the EU are implemented”.17
30.Second, when discussing the future role of the CJEU, the Government has indicated that it wishes to end the ‘direct’ jurisdiction of the CJEU. This suggests that the Government may be willing to contemplate some form of indirect jurisdiction. The Prime Minister has also accepted that the CJEU would have continuing influence after Brexit, in her speech at Mansion House on 2 March 2018:
“[E]ven after we have left the jurisdiction of the ECJ, EU law and the decisions of the ECJ will continue to affect us. For a start, the ECJ determines whether agreements the EU has struck are legal under the EU’s own law—as the US found when the ECJ declared the Safe Harbour Framework for data sharing invalid.”18
31.The Prime Minister has also suggested, on more than one occasion, that if the UK wishes to participate in an EU agency, it would have to “respect the remit of the CJEU in that regard”. What this means in practice is discussed in more detail at Chapter 5.
What is the Government seeking to achieve?
32.The Paper sets out the Government’s red line and some potential policy options. We asked the Government to explain in more detail what this red line meant in policy terms. In response, the Parliamentary Under-Secretary of State at DEXEU, Suella Fernandes MP, provided a useful summary of what the Government was seeking to achieve:
“The rationale and principles behind this policy decision were well rehearsed during the referendum campaign: to support the restoration of the UK’s legal sovereignty. The most practical manifestation of that is the ECJ no longer having jurisdiction over the UK, or rather its rulings no longer having the status of binding authority for UK courts. The binding nature of ECJ jurisprudence is a fundamental characteristic.
“It is also about breaking the intrinsic link between the EU’s legal order and the legal systems of the UK. Withdrawal will mean a return to the EU and the UK having their own autonomous legal orders. Those autonomies are to be respected in the withdrawal agreement and the agreement pertaining to the future economic partnership.
“Direct jurisdiction will come to an end when we depart from the European Union. We will no longer be a member state and EU treaties will cease to apply in the UK. By virtue of that, the doctrine of direct effect and the supremacy of EU law will cease to apply in the UK. The practical effect of that is that EU-UK agreements will not automatically form part of the UK legal order and it will be necessary for domestic legislation to be enacted to give effect to them.”19
The options available
33.The IfG provided us with some helpful evidence on the various models of enforcement and dispute resolution that we might wish to consider after Brexit.20 These are briefly described below with a short summary of their various advantages and disadvantages:
(a)‘Docking’ with the EFTA Court. This is an ‘off the shelf’ model: in principle, this would mean joining the EFTA Court, with British judges added. It would allow the UK to leave the single market, and the UK would not be subject to the direct jurisdiction of the CJEU, but it would mean accepting, at the very least, the indirect influence of the CJEU after Brexit.21 We took extensive evidence on this option and explore it in greater detail below;
(b)Creating a UK-only court to supervise the agreements. This is unlikely to be acceptable to the EU 27 who may see this option as the UK ‘marking its own homework’;22
(c)An arbitration arrangement. This would be workable for a free trade deal but potentially problematic for the Withdrawal Agreement, since the EU has strict rules about who interprets EU law. Issues would also arise if the UK wanted to continue to participate in EU agencies and mechanisms;
(d)A joint court to interpret the agreement for both sides. It is thought that the CJEU is not likely to accept this option (it previously rejected a proposal for a joint EU-EEA court in 1991);23
(e)A ‘Swiss-style’ dispute resolution system (essentially bi-lateral treaties monitored by committee). The EU is already negotiating with Switzerland to reform this system and we received evidence that it is extremely unlikely that it would accept such a model;24
(f)The WTO dispute system. In the absence of an agreed deal, the UK may well have to use this system for trade disputes—but it will not work as a way of enforcing the non-trade elements of any agreements, like citizens’ rights, the financial settlement, and UK-EU co-operation.25
The EFTA Court option
Background
34.The idea of ‘docking’ with the EFTA Court has been proposed as an off the shelf solution to a technically challenging problem. This option was supported by some witnesses and we explored it extensively.
35.The EFTA Court has jurisdiction over the EFTA States which are parties to the EEA Agreement26 (at present Iceland, Liechtenstein and Norway). The Court is mainly competent to deal with infringement actions brought by the EFTA Surveillance Authority27 against an EFTA State about the implementation, application or interpretation of EEA law rules, for giving advisory opinions to courts in EFTA States on the interpretation of EEA rules and for appeals concerning decisions taken by the EFTA Surveillance Authority. The jurisdiction of the EFTA Court largely corresponds to the jurisdiction of the CJEU over EU States. The Court consists of three judges, one nominated by each of the EFTA States party to the EEA Agreement. The judges are appointed by common accord of the Governments for a period of six years. The judges elect their President for a term of three years.
The evidence relating to the EFTA Court
36.In September 2017 it was reported that the then President of the ETFA Court, Carl Baudenbacher, had suggested that the EFTA Court might provide a solution to the impasse between the UK and the EU over enforcement and dispute resolution. He has expanded on this in several presentations in the UK. In one of these (currently unpublished) speeches, ‘Without the ECJ, but within the Single Market’, he considered the various options and argued that:
- Joint Committees are out of the question (see the case of Switzerland);
- Arbitration appears to be too weak (this was rejected by the EU in the case of Switzerland);
- A common court UK—EU is out of the question (see ECJ Opinion 1/91, discussed at para 33 above); and,
- a UK court will not be acceptable for the EU.
37.He concluded that “the deeper a future agreement is, the more likely the EU will insist on a court mechanism”.
38.It initially appeared that to avail itself of the EFTA model the UK would be required to accept membership of the EEA (often referred to as the ‘Norway model’), which has been ruled out by the UK Government. In his speech on 23 November 2017, President Baudenbacher floated the idea of the UK “docking” to the EFTA Court, without full EEA Membership. He considered three potential models and noting that this might involve full EEA membership; docking to EFTA Surveillance Authority and the EFTA Court so that the UK “could use the EFTA Court as a compromise for supervising UK-EU relations”; or docking for a transitional period.
39.While he dismissed the final option as problematic, he suggested that the ‘full docking model’ could mean that “Britain would not have to accept the whole EEA acquis but would subject its new trade agreement with the EU to the supervisory competence of the EFTA Surveillance Authority and the jurisdiction of the EFTA Court”.
40.Judge Baudenbacher highlighted several advantages of this approach. He described it as “an improper simplification” to say that in a conflict between the EFTA Court and the CJEU the EU court would prevail. He also noted that, in relation to the question of sovereignty, there was no written obligation on domestic courts of last resort to refer cases to the EFTA Court (although there is a “duty of loyalty and reciprocity”), and that the EFTA Court gave judgment in the form of an advisory opinion (with national courts left to decide the case based on the EFTA Court’s ruling, subject to the duty of loyalty).
41.In a written paper, submitted to us on 4 January, he expanded on these points, arguing that under the “judicial constitution of the EFTA pillar” there was “no direct effect and no primacy, no written obligation on courts of last resort to make a reference (‘more partner-like’ relationship than in the EU) [and] preliminary rulings are ‘advisory’”.28
42.Raphael Hogarth from the Institute for Government argued that docking “has a number of obvious advantages, essentially in negotiability”. He stressed the point that “historically, the Court of Justice has been a little resistant to courts in its backyard interpreting rules of law that are identical to rules of EU law, as rules of EEA law are”. He suggested that the EFTA Court was “a court with which the Court of Justice has made its peace”, and that a similar model had been suggested to Switzerland. However, he continued: “Obviously, there are potential political disadvantages to docking in that it might not be considered a clean enough break by those for whom taking back control is particularly important.”29
43.We put the option of ‘full docking’ to a number of other witnesses. Hugh Mercer QC was positive, suggesting that the EFTA Court was “quite a good solution”, which avoided reinventing the wheel.30 Professor Catherine Barnard also suggested that “the EFTA Court and docking is quite an attractive model, because at least the Court of Justice has given the green light to that”.31
44.However, several issues were also raised. Professor Valsamis Mitsilegas told us that “it is not ideal in the sense that the EFTA Court does not cover all areas of EU law, so you will have to find something for the elements that are not within the trade or the single market remits”.32 He gave the example that the EFTA Court would not have the jurisdiction to deal with any future EU-UK agreement on security, or the European Arrest Warrant (EAW).33
45.Professor Crista Tobler noted that for docking to occur, “everybody involved has to agree on that”: that means not only the EEA EFTA states but also the EU. She added that “at the moment, the court is a mini court …, consisting of three judges only, with some personnel around them taking a few cases per year. It would have to be enlarged considerably; I cannot imagine only three people—or possibly four, with a UK judge—dealing with the many cases coming from the much larger fourth country.” Nonetheless, she thought that the practical challenges might be overcome if the parties wanted to do so.34
46.Professor Graham Gee, on the other hand, as well as highlighting the problems of how you upscale “a tiny court with three judges, 20 staff and a budget of €5 million and whether you will get the agreement of the EU and EFTA states”, contended that “the real problem for the UK Government will be that they said no to direct jurisdiction of the Court of Justice”. He questioned whether docking simply led “to indirect jurisdiction, which will be indistinguishable from direct jurisdiction, because the EFTA Court will hew so closely to the case law of the Court of Justice and will not depart from it in any substantial way and over any standard period of time”.35
47.Martin Howe QC was entirely dismissive: “Personally I can see no benefit whatever in docking to the EFTA Court. It is a little poodle that goes yap, yap, yap along behind the Luxembourg court.”36
48.Suella Fernandes MP, was very clear that “the UK Government are not in favour of docking with the EFTA Court, to put it simply and directly”. She said that the EFTA Court “does not provide a forum for disputes between the EFTA states and the EU. Rather, it is for disputes within EFTA states. So it is not necessarily a model that we would want or that necessarily applies to our situation.” She went on to note that the EFTA Court “does not cover all areas of EU law. There are jurisdictional gaps.”
49.Finally, she said that joining the EFTA Court would not restore sovereignty, “due to the principle of homogeneity of EU law via the EEA”.37 Thus the ‘full docking’ EFTA Court option does not provide a solution and is potentially technically problematic if the UK does not wish to join the EEA.
A tailored solution?
50.In oral evidence to the EU Select Committee on 29 January 2018, the Secretary of State for Exiting the EU, Rt Hon David Davis MP, indicated that the UK would be looking for a tailored approach to dispute resolution, which might deal with issues such as trade, citizens’ rights and justice and home affairs in different ways. For example, he indicated that trade might be governed by an arbitration panel, whereas justice and home affairs issues could be dealt with by a “much more political body in the form of a political committee”. He said that the “reason for the multiple options set out in the disputes resolution paper was not to avoid the question but to set out the options from which you can pick what is appropriate for each area”.38
51.The Ministers who appeared before us on 27 March expanded on this argument. Lucy Frazer QC MP indicated that “[w]e can already see a distinction between the implementation and post-implementation periods”.39
52.Suella Fernandes MP said:
“Yes, there is definitely a variable approach. For example, EU citizens … will have an ultimate right to ECJ jurisdiction. Depending on the subject matter and where we are on our journey outwards, there will be differing dispute resolution mechanisms and aspects of connection between our respective legal orders.”40
53.Table 1 illustrates the wide range of issues under negotiation. It would potentially leave significant jurisdictional gaps were no agreement to be attained. The Table notes the current proposals from the UK and the EU, and whether agreement has yet been reached.
Table 1: Potential jurisdictional gaps post-Brexit
Area of legal agreement |
EU’s proposed mechanism |
UK Government’s proposed mechanism |
Status of negotiations |
|
Transition Period |
CJEU |
CJEU accepted in principle |
Agreed |
|
Dispute Resolution relating to the Withdrawal Agreement |
CJEU |
Political via Joint Committee |
Not agreed |
|
Trade |
Depends on terms of future relationship |
Possibly arbitration, but not clear |
Not agreed |
|
Regulatory Agencies |
Likely CJEU, but details unclear |
Respect CJEU remit in limited spheres |
Not agreed |
|
Security and Justice |
Likely CJEU, but details unclear |
Respect CJEU remit in limited spheres |
Not agreed |
|
Mutual recognition of civil, family and commercial judgments |
Unclear |
Lugano Convention and/or new agreement |
Not agreed |
54.The remainder of this report will address each of these stages in turn, commencing with the issues arising in respect of the proposed Withdrawal Agreement, then considering the specific proposals for the transitional period, before finally turning to the options for enforcement and dispute resolution in respect of the future relationship.
Conclusions
55.There is no ‘one-size-fits-all’ solution to dispute resolution after Brexit. Each of the proposed options we have considered has its own pros and cons. None of them provides a complete solution.
56.Given the Government’s red line of withdrawing from the CJEU, either a new court covering essentially the same areas as the CJEU, or multiple dispute resolution procedures, will be needed post-Brexit. Neither option has been costed. Not only may different arrangements be needed to deal with the Withdrawal Agreement, the transitional period, and the future relationship with the EU, but it may also be that future trade arrangements are dealt with differently to any agreement on co-operation on, for example, justice and security matters.
57.The EFTA court was presented as a potential off-the-shelf solution to the problem of dispute resolution. ‘Full docking’ with the Court is a limited solution. It is essentially an economic court and its jurisdiction does not extend to justice and home affairs issues, including EU co-operation on civil and family law matters and criminal law, such as the European Arrest Warrant. There would also be practical challenges in upscaling the EFTA Court to deal with the number of cases from the UK.
58.Unless the Government eventually choses to join the European Economic Area, we do not consider that ‘full docking’ with the EFTA Court would resolve all the enforcement and dispute resolution issues that will arise post-Brexit.
2 The Civil Service Tribunal is in the process of being dismantled following a staged increase in the number of judges serving the General Court and the re-assignment of jurisdiction in staff cases to the General Court as of 1 September 2016.
3 Department for Exiting the European Union, ‘UK to renominate Judge Vajda to the Court of Justice of the European Union (CJEU)’, 18 September 2017: https://www.gov.uk/government/news/uk-to-renominate-judge-vajda-to-the-court-of-justice-of-the-european-union-cjeu [accessed 18 April 2018]
4 There are four main types of direct actions: infringement (or enforcement) proceedings (Articles 258-260, Treaty on the Functioning of the European Union, OJ C326 (consolidated version of 26 October 2012); actions for annulment (Articles 263 and 264, Treaty on the Functioning of the European Union); actions for failure to act (Articles 265 and 266, Treaty on the Functioning of the European Union); and actions for damages (Articles 268 and 340(2), Treaty on the Functioning of the European Union). Enforcement proceedings are brought by the Commission, or a Member State against a Member State that has failed to comply with obligations under EU law. The actions for annulment and failure to act are used, respectively, to challenge illegal acts and omissions of the institutions, bodies and agencies of the EU. Finally, the action for damages is used to obtain compensation for loss suffered as a result of an unlawful Union act. For more on this, see: Catherine Barnard and Steve Peers (eds), European Union Law, 2nd Edition, (Oxford: OUP, 2017), pp 262–309
5 Article 267, Treaty on the Functioning of the European Union
6 Institute for Government, Who’s afraid of the ECJ? :Charting the UK’s relationship with the European Court, December 2017: https://www.instituteforgovernment.org.uk/sites/default/files/publications/IfG_Brexit_ECJ_v10FINAL%20web.pdf [accessed 18 April 2018]
7 Between 2003–2016 the Institute for Government recorded that some 29 of the 63 judgments (46%) handed down by the CJEU on UK infringements in this period related to the environment.
8 The study suggests that between 2011–2016 the UK Courts referred approximately 16 cases a year for a preliminary ruling.
9 Department for Exiting the European Union, Enforcement and dispute resolution: a future partnership paper (2017), para 27: https://www.gov.uk/government/publications/enforcement-and-dispute-resolution-a-future-partnership-paper [accessed 18 April 2018]
11 European Council, European Council (Art.50) guidelines for Brexit negotiations, (29 April 2017): http://www.consilium.europa.eu/en/press/press-releases/2017/04/29/euco-brexit-guidelines/ [accessed 20 April 2018]
12 Department for Exiting the European Union, Enforcement and dispute resolution: a future partnership paper (2017), para 1: https://www.gov.uk/government/publications/enforcement-and-dispute-resolution-a-future-partnership-paper [accessed 18 April 2018]
13 Ibid., para 7
14 Ibid., para 1
15 Ibid., para 18
16 Ibid., paras 20–21
17 Ibid., paras 46–51
18 The Rt Hon Theresa May MP, Prime Minister, Speech on ‘Our future economic partnership with the European Union’, 2 March 2018: https://www.gov.uk/government/speeches/pm-speech-on-our-future-economic-partnership-with-the-european-union [accessed 18 April 2018]
20 Institute for Government, Dispute resolution after Brexit, October 2017: https://www.instituteforgovernment.org.uk/sites/default/files/publications/IfG_Brexit_dispute_resolution_WEB.pdf [accessed 18 April 2018]. See also the evidence of Raphael Hogarth at Q 31.
21 It is not entirely clear whether the EFTA Court is bound by the post-1992 judgments of the CJEU: See for example Q 5 and Q 13. At Q 13, the former President of the EFTA Court argued that it is “an oversimplification” to state that in the case of a divergence of views “the solution of the ECJ will prevail”. Nonetheless, the system is designed to foster a homogenous legal order and thus any divergence from CJEU jurisprudence is likely to be, at the most, at the margins.
22 The IfG notes that Swiss proposals to create a national court to enforce bilateral agreements with the EU, akin to an EFTA-style court, have previously been rejected , see: Institute for Government, ‘Could the UK sign up to the EFTA Court after Brexit?’ 14 December 2017: https://www.instituteforgovernment.org.uk/blog/could-uk-sign-efta-court-after-brexit-baudenbacher [accessed 18 April 2018]
23 The CJEU found that such a new court system posed a threat to the autonomy of the Community legal order. It concluded that this threat was not reduced by the fact that CJEU judges were to sit on the court: the different goals of the EEA and the (then) European Community would mean that the judges of the CJEU who were also on the EEA Court would have to interpret the same provisions using different approaches, which would make it difficult for them to keep an open mind in the CJEU if they already tackled similar issues in the EEA Court. See CJEU, Opinion 1/91, ECLI: EU: C: 1991:490.
24 See Q 31 (Professor Christa Tobler) See also Professor Christa. Tobler, ‘One of many challenges after Brexit: the institutional framework of an alternative agreement: lessons from Switzerland and elsewhere’, Maastricht Journal of European and Comparative Law, vol 23, issue 4, (2016), pp 575–594: http://journals.sagepub.com/doi/pdf/10.1177/1023263X1602300402 [accessed 18 April 2018]
25 Institute for Government, Dispute resolution after Brexit, October 2017: https://www.instituteforgovernment.org.uk/sites/default/files/publications/IfG_Brexit_dispute_resolution_WEB.pdf [accessed 18 April 2018].
26 The purpose of the EEA Agreement is to guarantee, in all 31 EEA States (Iceland, Liechtenstein and Norway and the current EU 28), the free movement of goods, people, services and capital – “the four freedoms”. As a result of the agreement, EU law on the four freedoms is incorporated into the domestic law of the participating EFTA States. All new relevant EU legislation is also introduced through the EEA Agreement so that it applies throughout the EEA, ensuring uniform application of laws relating to the internal market.
27 The EFTA Surveillance Authority monitors compliance with the EEA Agreement in Iceland, Liechtenstein and Norway, enabling those States to participate in the European Union’s Single Market. The Authority is independent of the States and safeguards the rights of individuals and undertakings under the EEA Agreement, ensuring free movement, fair competition and control of state aid.
40 Ibid.