Brexit unexpected fallout in the Court of Justice

All EU institutions have to prepare for the post-Brexit reality. The British Commissioner will lose his position on the day the UK leaves the EU. After the European Council last week the chance there will be British MEPs is reduced to almost 0%. Hence most likely there will be 705 MEPs come July. In the Council and the European Council the British participation is already reduced and will cease to exist completely the first day UK is out of the Union. The scheduled British Council presidency was scheduled for 2017 and it was scrapped in the first weeks after the Brexit 2016 referendum. The EU institutions have been internalising Brexit for years by now.

The Court of Justice of the European Union (CJEU) is facing its own Brexit challenge. The issue concerns the participation of the British judges and the Advocate-General (AG) in the works of the Court. Each of them is nominated according to different rules and following a different calendar.

There should be no problems with ending the term of office of the EU Court of Justice member. The mandate of Judge Christopher Vajda is linked with United Kingdom’s EU membership. The mandate of judge Ian Stewart Forrester of the General Court ends in August 2019.

Meanwhile, the bigger issue is related to the Advocate-General Eleanor Sharpston. The number of Advocates-General is not related to the number of EU Member States. This number is specified in the Statute of the CJEU as part of the treaties. Among the Advocates-General there is no “one country one AG” principle, which is applied among other higher ranked public such as members of the European Commission or judges of the Court of Justice. The mandate of AG Sharpston ends in October 2021.

There are currently 11 Advocates-General in the Luxembourg-based Court of Justice. Their work is coordinated by the First AG Maciej Szpunar. Six AGs come from the six largest EU nations while the others are rotated.

AG Maciej Szpunar

During a recent event in Warsaw AG Szpunar admitted the Court is faced with the dilemma of Brexit’s impact on its functioning: “First of all, the question should be asked if Brexit – for example in the event of UK exit without an agreement – means automatic expiration of the British AG mandate? It would be advisable for the Member States to make appropriate arrangements in this regard, taking into account the specificity of the functioning of the Court. And secondly, and this question is also for Member States to address, should the British AG post be moved to rotation?”.

Et alors?

The pending issue of the status of the British AG is a minor issue in the larger fallout of Brexit – with or without the May-negotiated agreement. But this small issue of an internal ECJ cuisine is indicative that Brexit has important consequences not only on the UK. The impact of Brexit on the rest of the Union and its institutions is as important and even more relevant for the rest of us who are outside of the United Kingdom.

It is my understanding that this is a developing story. Many of the shocks of Brexit – i.e. the financial contribution of the major net payer, the UK, into the EU budget – shall be absorbed by the other member states. Yet it does not solve all the issues.

It is a well-shared expectation that in short-term Brexit pushes the United Kingdom into a recession. The agreement question is largely only about the degree of the recession Britain is facing.

The big question out there is if Brexit pushes the rest of the Union into a recession, too.

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