In Depth

Will EU judges rule on post-Brexit agreements?

Leaked document suggests Brussels wants European Court of Justice to have final say on any trade deal disputes with UK

Brussels is demanding that the European Court of Justice (ECJ) should have the power to rule on any post-Brexit trade deal disputes with the UK, leaked EU documents reveal.

The internal diplomatic file, seen by The Times, reveals that EU will insist that the bloc’s judges must be able to enforce the terms of a trade, fishing and security agreement. 

The newspaper says that Downing Street has rejected the proposal – and that Tory Brexiteers are urging Boris Johnson to “walk away” from the deal.

Negotiations will not start officially until after the European governments agree a negotiating mandate late next month.

EU negotiators have already said they want the UK to abide by EU rules on state aid to businesses and environmental protection, but the reported new proposals go much further.

Brussels wants the Luxembourg-based ECJ to have a role in ruling whether Britain has breached any rules that the country signs up to in both current and future trade agreements.

Arch-Brexiteer and former Conservative leader Iain Duncan Smith told The Times that Johnson must dismiss the proposal and pursue parallel talks with the US.

“We have simply got to say no,” said Duncan Smith. “Nobody in their right minds would accept this and if they continue to pursue this then we simply have to walk away.”

Downing Street sources have also spoken out against the proposal, saying that the European court was “by very definition not a neutral arbiter”. 

“We have consistently been clear that we will not accept alignment as part of any free trade deal,” a source said. “There is no reason for the EU to insist upon it. It doesn’t feature in their free trade deal with Canada, for example.”

But the leaked EU document says that the UK is “a partner like no other”, because of its “geographic proximity... economic interdependence and connectedness” with the rest of Europe.

Fishing for banking?

The leaked document also suggests that the EU is pushing for European boats to be allowed to fish British waters in return for free trade with the bloc.

The subjects of fishing rights and finance “have become linked since Britain and the EU agreed in last year’s political declaration that they were priority areas”, says the i news site.

In the run-up to the EU referendum in 2016, the Vote Leave group campaigned on the basis that the post-Brexit UK would “reclaim” British waters.

But Irish leader Leo Varadkar said yesterday that he believed the EU would use Britain’s “weak position” on access to Europe’s financial markets to force concessions, including giving up control of UK coastal waters.

Speaking to the BBC, Varadkar said: “If financial services and entertainment, audio visual are cut off from the single market, the European market, that will be a very severe blow to the British economy.

“So you may have to make concessions in areas like fishing in order to get concessions from us in areas like financial services.”

Responding to the claims, a Downing Street spokesperson insisted that fishing rights were not on the negotiating table, saying: “We are going to be taking control of our fishing waters. We have been clear on that.”

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