The M&A Perspective

Europe à la Carte – Avoiding/Leaving the Purview of the European Court of Justice?


British Prime Minister Theresa May recently stated that Britain will not have truly left the European Union (EU), if it is not in control of its own laws. This means that by leaving the EU, Britain will also want to leave the jurisdiction of the European Court of Justice (ECJ), the EU's supreme judicial authority. This may prove rather difficult as Ms May also stated that Britain wants to retain the "greatest possible access" to the EU's single market following its exit. In its negotiations with Switzerland, the EU has insisted on an institutional framework agreement that comprises a mechanism to settle disputes in terms of agreements, with an EU preference for the ECJ to retain ultimate jurisdiction. It will be interesting to see (in particular from a Swiss perspective), what position the EU will take in its negotiations with Britain.

But it may actually be the other way round, i.e. Britain following the negotiations between the EU and Switzerland on that point: On 6 April 2017, Doris Leuthard, President of the Swiss Confederation, and Jean-Claude Juncker, President of the European Commission, announced that "all so-called blocked elements" in the negotiations between the EU and Switzerland have been unblocked, including the talks regarding an institutional framework agreement which are planned to continue by the end of the year.
Why this sudden activism? It may simply be a natural consequence of Switzerland's EU-compliant implementation of the mass immigration initiative last December. But it could also be Brexit negotiation tactics of the EU, as it could use the negotiations with Switzerland to send indirect messages to London, which is not an entirely pleasant outlook from a Swiss perspective. It raises the question whether Switzerland should be patient in that specific context, defer to Britain and say "Britain first".


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