Brexit’s Bogeyman: The much-maligned Court of Justice of the European Union.

Post by Mr. Colin Murray on the Political Studies Association Blog, discussing the role and power of the CJEU.

Fear stalks the debate on the UK’s membership of the EU. But just as Michael Gove accuses the Remain campaign of treating the UK’s voters “like mere children” by attempting to scare them off the possibility of Brexit, in the very same speech he conjures up the dark spectre Court of Justice of the European Union (CJEU) and its insidious plans to dominate the UK’s legal systems.

The role and power of the CJEU must be understood in light of the relationship between EU law and the domestic law of member states. Eurosceptics charge that the EU has changed beyond all recognition since the UK joined the then- European Economic Community (EEC) in 1974. And it is true that the range of EU competences has expanded, largely through treaties that successive UK Governments have signed up to secure the benefits that flow from integration. The key doctrine whereby certain EU measures enjoy “supremacy” within national legal systems, meaning that they are given priority over conflicting domestic rules, have however been in place since the 1960s; before UK membership. There are good reasons for having some directly effective measures. The EU simply could not function if its 28 national systems could ignore binding EU rules within areas of competence which the member states have transferred to the EU.

In other words, for all of the feigned outrage at the CJEU’s judgments, its decisions do not amount to some secretive and undemocratic project. It is a court, doing its job by applying long-established legal doctrines which UK policy makers have always understood as operating in areas of EU competence. As one Law Lord declared in the 1990 Factortame judgment, ‘it has always been clear’ under the legislation bringing the UK into the then-EEC that enforceable rules of European Law would have priority over conflicting domestic law.

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