Are we running out of time to agree cross-border judicial cooperation post-Brexit?

26 February 2018

The answer, according to the European Parliament’s recent report on the impact of Brexit on freedom, security and justice, is “yes”.

The report notes the wide-ranging implications for individuals and businesses with commercial or personal ties to the UK and any other EU member state who are facing uncertainty over cooperation between the UK and the remaining 27 member states in civil and commercial matters post-Brexit. Specifically, the Parliament considers the knock-on effect on jurisdiction issues and the enforcement of judgments in other member states, concluding that if the current regulations do not apply post-Brexit, this will “undoubtedly impede access to justice and effective remedies in cross-border legal disputes involving the UK”.

The UK Government has suggested that this area of law would be treated as “retained EU law”. The European Parliament’s view is that this is unlikely to be enough. It would not prevent the UK from unilaterally amending or repealing those provisions after exit day, such that the remaining member states would have no committed reciprocity from the UK to rely on.

Another difficulty highlighted by the Parliament is the repeal of the rights and principles contained in the EU Charter and the jurisdiction of the Court of Justice of the European Union (European Court) contained in the UK’s Withdrawal Bill. The Charter’s and European Court’s standards and safeguards provide guarantees of a level playing field and support the mutual trust which underpins the cooperation between member states. The Parliament considers that the role of the European Court is a crucial prerequisite to the establishment of any future relationships between the UK and the EU and that the UK’s current stance may make it difficult to continue the current high level of cooperation post-Brexit.

The Parliament notes that existing agreements in these areas with third countries have been time-consuming to negotiate and put into force, and concludes that it is unrealistic to expect that any such agreement with the UK would be concluded in time to ensure a smooth transition.

The report suggests that retaining cross-border jurisdiction and enforcement provisions is likely to be of greater concern to the UK than the remaining member states due to their particularly acute impact on UK businesses and legal services. It recommends that the UK and EU institutions engage on this issue as a matter of urgency, given the extreme time pressures, and warns that transitional arrangements are unlikely to be any simpler to agree than third country agreements if the UK maintains its refusal to accept jurisdiction of the European Court.