The Inner Temple Yearbook 2021–2022
Sovereignty Regained, EU Law Retained
SOVEREIGNTY REGAINED, EU LAW RETAINED By Master Philip Moser
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Luxembourg, on the 12 February 2020. The President of the Court of Justice of the European Union (CJEU), Koen Lenaerts, is giving a valedictory address bidding farewell to the last United Kingdom judge of the CJEU, Christopher Vajda QC, following the departure of the UK from the EU on 31 January of that year. President Lenaerts pays tribute to the British judges’ contribution, both to the acquis communautaire and the Court itself, as follows: “Successive British members have, over the past 47 years, enriched our institution, both intellectually and personally, bringing to their work the rigorous, case-law based approach that is the hallmark of common law systems, as well as their British pragmatism and common sense, not to mention their inimitable sense of humour.” Successive CJEU presidents have paid similar compliments to the Bar over the years of UK membership. Writing in the Spring 2015 issue of the European Advocate (pp.2-7), then President Skouris said this about the UK’s distinctive approach to representation before the Court: “…it is worth noting that the United Kingdom is not represented by government agents before the Court but by independent and experienced advocates. Those advocates carefully test whether the government’s arguments are intuitively persuasive and optimize their presentation so that it will immediately catch the attention of the Judges. Common lawyers therefore manage to give more distinctive relevance to an oral argument than civil lawyers do, and their written and oral presentations are usually particularly clear, concise and gripping.” This considerable common law contribution to the hearings in Luxembourg and the case law of the CJEU will not be lost entirely following the exit of the UK from the EU, as the Irish Bar remains. Intending no offence to our Irish colleagues, however, and from the clear disparity in the numbers of cases and barristers alone, it is clear that this contribution will be much diminished without the UK. Over those 47 years, a distinctive body of EU law practitioners evolved at the Bar of England and Wales, with a particular specialism in advocacy before the CJEU, both in references for preliminary rulings from national courts and tribunals and in direct actions (which are mostly against Commission decisions) before the court of first instance, the General Court.
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The barristers who appeared regularly in Luxembourg were the most prominent exponents of the practice of EU law at the Bar, and one might mention the late David Vaughan CBE QC, Eleanor Sharpston QC, Paul Lasok QC or David Anderson QC in a very non-exhaustive list, with others too numerous to add here. The hearings in Luxembourg, although often only lasting a morning, and the judgments delivered by the Court, were likewise the most visible forensic features of the influence of EU law on our domestic legal scene. They were however only a part of the whole. EU legislation and other acts of the EU institutions contributed greatly to the UK statute book, mainly by way of regulations (which were directly applicable without the need for implementation) and directives (which required implementation but could take ‘direct effect’ if unimplemented). It was after all a key feature of EU law that it took effect in, as well as taking precedence within, national law. This being the very feature that had proved controversial throughout UK membership and was generally summed up by the term ‘sovereignty’, which became a key driver for Brexit. In EU terms this is the principle of ‘precedence’ established, well before UK membership, in Case 6/64 Costa v ENEL [1964] ECR 585: “By contrast with ordinary international treaties, the EEC Treaty has created its own legal system which, on the entry into force of the Treaty, became an integral part of the legal systems of the Member States and which their courts are bound to apply. By creating a community of unlimited duration, having its own institutions, its own personality, its own legal capacity and capacity of representation on the international plane and, more particularly, real powers stemming from a limitation of sovereignty or a transfer of powers from the States to the community, the Member States have limited their sovereign rights, albeit within limited fields, and have thus created a body of law which binds both their nationals and themselves.” That transfer of the UK’s sovereign rights was reversed by Brexit and the Trade and Co-operation Agreement (TCA) between the UK and the EU. Thus, the precedence of EU law in the UK (with exceptions for Northern Ireland under the Ireland-Northern Ireland Protocol to the Withdrawal Agreement) ended on 31 December 2020, some eleven months after the UK’s actual exit. The jurisdiction of the CJEU in the UK likewise ended that day.
