Chancery Society, London, 4 November 2025
The EU Legal Order and the British Discomfort
The European Union has been a driving force behind the judicialisation of politics, with the Court of Justice of the European Union (CJEU) playing a central role since the establishment of the European Coal and Steel Community in the 1950s.
Early landmark rulings, such as van Gend en Loos (direct effect) and Costa v ENEL (primacy of EU law), established the CJEU as a political actor. The institutional structure – shaped by French legal tradition, a distinctive judicial style, secret deliberations, and the absence of a doctrine of precedent – further supported this evolution.
British Dissatisfaction with the CJEU
The British legal system’s approach to textual interpretation contrasted with the CJEU’s teleological, or purpose-driven, approach. The principle of an “ever closer union” was a significant factor contributing to the Brexit decision. Specific rulings, such as the short selling case (C-270/12), reinforced British concerns about the scope of CJEU authority.
Institutional Alternatives and Post-Brexit Dispute Resolution
Following the Brexit referendum, the possibility of adopting the “Norway model” (EEA/EFTA membership with oversight by the EFTA Court) was discussed but ultimately dismissed.
The EU proposed including the so-called “Ukraine mechanism” – a formal arbitration tribunal required to send questions of EU law to the CJEU for binding interpretation – within both the Withdrawal Agreement (WA) and the Trade and Cooperation Agreement (TCA). Theresa May had intended to accept this provision, but Boris Johnson rejected it for the TCA. Nonetheless, the mechanism remains part of the WA, leaving the CJEU with ultimate authority over Northern Ireland-related matters.
ARole for the EFTA Court?
In important cases, the EFTA Court has pursued an independent and market-oriented approach. It has also safeguarded the sovereignty of the EEA/EFTA states. Key examples include cases involving Norwegian public ownership of natural resources (Norwegian waterfalls), Liechtenstein’s security-for-cost rule (Case E-5/10 Dr Kottke), Liechtenstein trust law (Joined Cases E-3/13 and E-20/13 Olsen), and ICESAVE. In several instances, the CJEU has subsequently adopted reasoning similar to that of the EFTA Court, as seen in Panayi on trust law.
Conflict Resolution After Brexit
In 2025, the first (true) arbitration under the TCA – concerning sand eel fishing – upheld a British fishing ban as lawful, contrary to EU expectations. The ruling underlined the importance of scientific evidence and proportionality in the application of such measures.
Outlook: Cooperation, Sovereignty, and Emerging Fault Lines
Efforts to strengthen UK–Swiss cooperation after Brexit (“Britzerland”) have largely been unsuccessful. Switzerland’s planned bilateral agreements with the EU entail dynamic adoption of EU law and oversight by the European Commission.
The Swiss government has indicated willingness to adopt the “Ukraine mechanism”, which would oblige pro forma-arbitration tribunals to send questions to the CJEU for binding interpretation. Despite official claims of independence, the CJEU would thus retain a central interpretive role.
Given that Switzerland excludes EU membership as an option, such a structure could amount to a permanent, asymmetrical arrangement. The CJEU’s interpretive method, at times resembling legislative action, has raised concerns – for instance, the C-181/23 Commission v Malta ruling of the Grand Chamber earlier this year has been described as ultra vires, having come unexpectedly.
If the Swiss people (and the Cantons) were to reject the unequal treaty with the EU, the ‘Britzerland’ idea or even a model of EFTA plus including the UK could become relevant again.
The UK’s ‘Reset’ Plans
The current British Labour government aims to deepen cooperation with the EU. This would, however, require acceptance of the “Ukraine mechanism”, reintroducing the CJEU’s authority – without British judges or advocates general. In effect, the UK could find itself bound by what some observers describe as an “unequal treaty”, recalling historical precedents of extraterritorial jurisdiction that Britain itself once imposed abroad.
The UK and the European Convention on Human Rights
There are growing political calls within the UK for withdrawal from the European Convention on Human Rights (ECHR). Should the Conservative Party or Mr Farage’s party prevail in the next election, such a step cannot be ruled out.
