Posted on Dec 19, 2021
Following the expiry of the UK transition period provided by the Withdrawal Agreement in January 2021, the UK is no longer bound by the 2007 Lugano Convention which allows for the cross-border enforcement of court judgements in civil cases between the EU member states, the three EFTA states, and to third parties.
Despite the “clean-break” Brexit promised to the British people by Boris Johnson’s government, on April 8th 2020 the UK quietly submitted an application to re-join the Agreement as a third-party state, a possibility that is explicitly allowed for - Iceland, Norway, and Switzerland - EFTA members, have already signed up thus.
However, the European Commission has ruled this out.
The Convention is based on a high level of mutual trust among the contracting parties and represents an essential feature of a common area of justice commensurate to the high degree of economic interconnection based on the applicability of the four freedoms.
The Commission has blocked UK re-entry to the Convention as it is “simply a third country without any special link to the internal market,” and as such “there is no reason for the European Union to depart from its general approach in relation to the United Kingdom.”
The Commission proposed instead that the UK apply to join the Hague Convention on the Recognition and Enforcement of Foreign Judgements in Civil of Commercial Matters.
At the time of writing, this Convention has only four signatories, Costa Rica, Israel, Ukraine, and Uruguay. Should the UK seek to join them, the agreement of the European Parliament would be required.
Bring back the ECJ, says Downing Street.
A more recent volte-face by the UK government concerns the European Court of Justice (ECJ) - an EU institution - and its role in the Northern Ireland Protocol. The government has announced that it wants to reverse its previous agreement on the oversight role of the ECJ, which is the EU's highest court. Read more.
Downing Street is now open to discussing a role for the ECJ, which could draw on other EU agreements, and could mean the court ruling on issues of EU law. This comes despite the fact that as recently as November of this year it was demanding the removal of the ECJ from any regulatory role in the Protocol, and despite Boris Johnson's unambiguous statement on the EU's highest Court one week before the expiry of the transition period when he said:
From January 1st we are outside the customs union, and outside the single market. British laws will be made solely by the British Parliament. Interpreted by UK judges sitting in UK courts. And the jurisdiction of the European Court of Justice will come to an end.
However, this latest back-down by the current Prime Minister was swiftly re-buffed by European Commission Vice-President Maroš Šefčovič who declared that the EU was not ready to discuss the role of the ECJ, referring pointedly to the “unique challenges that Brexit, and the type of Brexit chosen by the UK government, poses for the island of Ireland.”
That the British government wishes is re-join an EU Convention and to give the ECJ a new role in Northern Ireland will inflame the Brexiteers. That the European Commission has rejected the attempts will infuriate the Remainers, who seek to re-join the EU.
The resignation, announced on Saturday, of the the formidable Brexit Minister Lord David Frost over his growing "disillusionment with the direction of the PM's policy," will negatively impact the UK's negotiating position with the EU.
It would appear that the Prime Minister has made everybody unhappy, except for the European Commission.
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