Rebordering Britain & Britons after Brexit
The Court of Justice of the European Union and the United Kingdom after Brexit: Game Over?
Abstract
One of the desiderata strongly pursued by the supporters of Brexit was to end the jurisdiction of the Court of Justice of the European Union (CJEU) in relation to the United Kingdom (UK). While they seem to believe that the mission has been accomplished, this article proves that the game is not over yet. As it is frequently the case, the devil is in the detail. Firstly, the EU-UK Withdrawal Agreement envisages an important role for the CJEU and its case law in the post-Brexit legal environment. Secondly, even though the United Kingdom has taken control over its laws, many of them are retained EU (European Union) laws, which only formally have been cut off from their original source. In reality, they remain legal transplants: EU regulations and directives wrapped in the Union Jack. This largely extends to jurisprudence of the CJEU predating the end of the transition period which has now become retained EU case law. Consequentially, the UK courts, even despite caveats laid down in the Withdrawal Act 2018, are likely to venture into the Luxembourg jurisprudence even if only as a persuasive source of inspiration.
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