THE EUROPEAN COURT OF JUSTICE PENDING BREXIT
GEORGINA REA
Business as Usual at the European Court of Justice Pending Brexit Georgie Rea received the Middle Temple Young Barristers Association Overseas Internship Award and The Hon Sir Peter Bristow Scholarship to support her placement in the Cabinet of Judge Christopher Vajda at the ECJ last summer. Since returning from Luxembourg, Georgie has secured pupillage at Garden Court Chambers to commence October 2021.
A resounding theme ran through the cases which coloured my traineeship at the European Court of Justice (ECJ): the EU’s relationship with the international legal order. In its early years, the Court strove to cement the principles of autonomy, consistency and uniformity of EU law across its Member States. The relationship between domestic courts and the ECJ established through the preliminary ruling system became the lifeblood of this internal autonomy. However, having soothed the Member States’ teething pains brought about by the creation of this new legal order, in its adulthood the Court is also tasked with preserving the identity of the EU in the face of globalisation and rapidly developing norms of international law. During my traineeship, I encountered three cases in particular which truly impressed upon me the challenges this evolution presents to the CJEU. Opinion 1/17 of The Court on the Comprehensive Economic and Trade Agreement (CETA) On Tuesday 30 April 2019 the Court held, in Opinion 1/17, that the mechanism for the resolution of disputes between investors and States provided for by the EuroCanadian free trade agreement (CETA) is compatible with EU law. In light of this opinion, a roundtable event was hosted by the Max Planck Institute of Luxembourg, which brought together members of the European institutions and academics to discuss questions raised by the creation of a CETA Tribunal and Appellate Tribunal, as well as
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the eventual establishment of an ‘Investment Court System’ (ICS). The issue at the centre of the discussion was the external autonomy of the EU legal order. Many of the questions directed at the panel concerned the decision in Achmea, C-284/16, where the Court held that international arbitration between Member States under bilateral investment treaties would not be compatible with EU law. Opinion 1/17 makes a clear distinction between the intra-state arbitration in Achmea and dispute resolution under CETA, as the latter represents an agreement between the EU and a third state. This harks back to the idea that internal legal autonomy is a battle the Court considers it has already won. In order to make a finding of compatibility, the opinion defines the jurisdiction of the Tribunal as narrowly as possible, stressing that the Tribunal would not interpret, apply or make binding interpretations of EU law (other than the provisions of CETA), but merely examine it as a matter of fact. Several panellists felt that the Court’s hands were tied in this matter by the active role assumed by the Union in creating such treaties. The political realities of EU external relations, particularly in respect of investment treaties, has forced the Court to move away from excessive formalism, protecting only the most fundamental features of autonomy. Slovenia v Croatia Case C-457/18 My largest research task during the placement concerned infringement proceedings, brought by Slovenia
2020 Middle Templar
against Croatia on Friday 13 July 2018. Slovenia sought a declaration that Croatia had failed to fulfil its obligations under EU law by not complying with an arbitration agreement between the two States intended to resolve their border dispute. Croatia submitted that, as the alleged infringements arose from a border dispute, which is a matter of international law, the ECJ lacked competence to hear the case. The Court addressed the question of admissibility in a separate hearing on Monday 8 July 2019 under Article 151 of the Rules of Procedure. In the months between the hearing of the case and the release of Advocate General Priit Pikamäe’s opinion, I conducted research alongside the Cabinet’s référendaires into the question of admissibility. In the judgment published in January of this year, the Court stressed its lack of jurisdiction to give a ruling on the interpretation of an international agreement concluded by Member States whose subject matter falls outside the areas of EU competence. The Court held that the infringements of EU law pleaded were merely ancillary to the alleged failure by Croatia to comply with the obligations arising from the arbitration agreement and award at issue. The Court rejected the submission that the arbitration agreement formed an integral part of EU law, thereby protecting the Court’s exclusive jurisdiction and the autonomy of the EU legal order. However, whilst noting that competence in respect of border demarcation is a reserved competence, the Court reached a compromise by requiring the two Member States in question to strive sincerely to bring about a definitive legal solution to the dispute consistent with international law under Article 4(3) TEU, thereby demonstrating its commitment to the strict observance of international law under Article 3(5) TEU.
