The UK and Europe
Who's afraid of the European Court of Justice?
Lewis Lloyd / Dec 2017
Photo: European Court of Justice
The Government has promised that leaving the EU will put an end to the direct jurisdiction of the European Court of Justice (ECJ) in the UK. This is typically presented as a matter of principle – about making UK law supreme, and limiting the influence of judges in Luxembourg on British life. But there has been little evidence-based discussion of how often the UK interacts with the ECJ, and what the nature of those interactions tends to be.
The Institute for Government’s new report, Who’s Afraid of the ECJ?, aims to address this. Based on data from the European Commission and the ECJ, we offer an insight into the relationship between the UK and the European Court over the past 14 years. The UK’s experience is also compared to that of the 14 other longest standing member states, allowing for a broader assessment of the ECJ’s role across the bloc.
We find that the UK is rarely taken to court for being in breach of its obligations under EU law, when compared to other member states. The European Commission brought 63 cases against the UK before the ECJ between 2003 and 2016. It brought almost twice as many against Germany and France over the same period: 118 and 123, respectively. Italy and Greece are the worst offenders, approaching the 200 mark. And even Luxembourg, with a population of little more than half a million, has been involved in 136 cases.
The UK is also more successful than most member states when it is taken to court. Over the last 14 years it has won a quarter of its cases – not a particularly striking success rate, but higher than any other country that joined the EU before 2004. Where countries such as Greece and Italy are fined almost annually for failing to comply with EU law, the UK has never been subject to a financial penalty from the ECJ.
This has implications for the Brexit negotiations, particularly as both sides prepare to discuss the future UK-EU relationship. The evidence supports the Government’s line that the UK is a good international citizen that meets its obligations. Some will say the UK’s track record means a robust system of enforcement for the future relationship is unnecessary. But it could also be argued that the UK should in fact be pushing for such a system. The better-behaved partner in any international agreement will benefit from having the other held to a high standard.
The UK’s good behaviour only extends so far, though. When it comes to the environment, both EU negotiators and campaigners at home have cause for concern. Almost half of the ECJ’s rulings on cases concerning the UK over the past 14 years have related to the environment. Leaving EU enforcement mechanisms could create a ‘governance gap’ here, suggesting that Michael Gove’s recent proposal for a new environmental watchdog should be welcomed.
The question of whether UK courts will have to refer some cases to the ECJ after Brexit has also proven controversial. We find that the number of cases referred from the UK each year hovers around the average for the EU as a whole, at roughly 20. About 2 of these typically relate to citizens’ rights. This is in line with the Government’s expectation that ‘two or three’ cases will be referred for each of the 8 years after Brexit, subsequent to the recent UK-EU joint report.
As a more general trend, the number of court cases brought against the UK and other member states has fallen sharply over the last ten years, reflecting changes in the way the Commission resolves breaches of EU law. In 2003, the total number of cases the ECJ ruled on concerning all member states was 213. By 2016, despite the accession of a further 13 countries from 2004 onwards, that number had dropped to 31. The influence of the ECJ on member states cannot, of course, be measured solely by the frequency of its judgments. But it is interesting that the court has become an object of such political contention at a time when its direct involvement in the affairs of member states is in severe decline.