Hotel California?: The Continuing Jurisdiction of the CJEU

Authors: ,

This Paper explains how, in the context of CJEU jurisdiction after exit day, the respective red-lines of the UK and EU are incompatible with each other. Whereas the UK claims to end CJEU jurisdiction, the EU claims, and has always claimed, final authority to interpret EU law. Hence, CJEU jurisdiction cannot end with the entry into force of a Withdrawal Agreement. Indeed, a commitment by the UK to negotiate an international treaty with the EU covering matters of EU law carries with it the inevitability of continuing CJEU jurisdiction in respect of matters relating to EU law in that Agreement.

With these points in mind, this Paper outlines four main aspects to the continuation of CJEU jurisdiction after Brexit, namely, the CJEU jurisdiction during the transition period, over Part 2 of the Withdrawal Agreement, over the proper interpretation of the terms of a Withdrawal Agreement and through the backstop protocol. The Paper outlines, briefly, the need for substantial amendments to be made to the intended structure of the EU (Withdrawal) Act in order to give proper effect to the continuation of CJEU jurisdiction after exit day.

This publication presents the personal views of the author and not those of The Constitution Society, which publishes it as a contribution to debate on this important subject.