Abstract
What was the role of the Court of Justice of the European Union (CJEU) in the Brexit saga? And what will the impact of Brexit be over the future structure and activity of the CJEU? This article deals with this twofold question and explores three different issues. Firstly, we will offer a reflection on the questions and the risks raised by the Wightman case, where the CJEU ruled on the unilateral revocation of the UK notification of its intention to withdraw from the European Union under Art. 50 Treaty of the EU. Secondly, we will analyse the impact of Brexit on the composition of the CJEU and, particularly, the risks for the independence of the Court raised by the advanced termination of the mandate of the British Advocate General. Thirdly, we will provide some insights on the scope of the jurisdiction of the CJEU in the post-Brexit Union, emphasising how the Withdrawal Agreement maintained its jurisdiction during and even beyond the transition period. This article reflects the events that took place up to 6 October 2020.
Highlights
The irony in this is that Brexit can be defined as an effort to push the tide of European Union (EU) law back to recover the original meaning of British sovereignty, understood as parliamentary supremacy (Dicey, 1885) in a context characterised by a partly written constitution
Consider that EU law has over the years contributed to creating new rights that have partly been retained by the domestic norms governing the repeal of EU law in the United Kingdom (UK)
As the Court of Justice of the European Union (CJEU) suggested—among others—in Opinion 2/13, mutual trust is a pillar of EU law, which operates as a presumption in the relations among Member States and as cases in asylum law show, can only be challenged under very specific circumstances
Summary
Politics and Governance, 2021, Volume 9, Issue 1, Pages 27–36 tive, the Brexit saga was a shocking turning point, the moment of rupture with its traditional “awkward partner” (George, 1990) In this saga, the Court of Justice of the European Union (CJEU) played a relevant role and contributed to disclosing the tensions between the respect for national sovereignty and the independence of supranational institutions. Consider that EU law has over the years contributed to creating new rights that have partly been retained by the domestic norms governing the repeal of EU law in the UK (see UK Parliament, 2018) Another example of the complex context triggered by the Europeanisation of the British system is the first Miller case, firstly heard before the High Court The final remarks highlight the importance of Brexit for the future case law of the CJEU
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