So... in the light of @DmitryOpines' thread about the enforcement of WTO rules; here's a thread on the enforcement of EU law rules. Rather like the WTO, the EU is still badly misunderstood. So here is some EU law for you!
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This is necessarily simplified (but I hope not overly so). The key point is that EU law, unlike eg WTO law, is applied and enforced by domestic courts. EU law rules have teeth, and can be (relatively easily) enforced by private individuals. 2/n
A preliminary point is that the nature of EU law, and the balance of power and responsibility as between national courts and the CJEU, is controversial. The EU legal order and national legal orders are in tension. This is my take (esp at p.4-6): 3/n
The CJEU has three main heads of jurisdiction (ie it hears three main types of cases). First, actions against the EU institutions; either judicial review (A263 TFEU) or for damages (A340(2) TFEU). They need not detain us here. 4/n
Second, actions against a State, where it has failed to fulfil its obligations under the Treaties (A258-260 TFEU). The action is heard by the CJEU. Claims are brought either by the Commission or another State... but not by individuals. 5/n
This is enforcement of EU rules at the international level. If there is a breach of EU law, the CJEU will declare that there is a breach, and can impose a fine on the State. It is for the State to then change its law to rectify the breach. 6/n
This method of enforcement is similar to that which exists in the WTO, though the procedures are more simple, more legalistic, and can lead to more effective sanctions, within the EU. 7/n
Third, and most important, the CJEU has jurisdiction to answer questions on the interpretation (and validity) of EU law which are referred to it by national courts (this is the (famous) A267 reference procedure). 8/n
EU law (unlike most international law) is not enforceable merely at the suit of the Commission and other States, but also at the suit of individuals. Say a trader is faced with a new tariff which appears to breach the Treaties. 9/n
It can complain to the Commission, or to a national Government, and hope that they bring a case via A258 to the CJEU. But that does precious little good to our trader. Yes, within a few years, the action might result in the offending tariff no longer being applied. 10/n
But... there are no guarantees, and in the meantime, the offending barrier will still be there. Better, according to the CJEU, to allow the trader to claim directly... and to seek to vindicate its rights in the national courts. 11/n
In order to do this, EU law is said to be 'directly effective' in the national legal systems, and 'supreme' over conflicting rules of national law. The Treaties thus create law which national courts are obliged to protect. 12/n
Thus, if the offending tariff, based on national law, is indeed in conflict with the Treaties, national courts are obliged to set the offending rule of national law aside, and provide an effective remedy to the trader. 13/n
How this is done is... controversial. The CJEU reasons with reference to the nature of the EU Treaties and the effectiveness of EU law. It is said to be inherent that EU law, uniquely among other forms of international law, has these effects. 14/n
National courts typically accept the result (that they are obliged to give effect to rules of EU law ahead of conflicting rules of national law), but not the CJEU's reasoning. 15/n
UK courts, for example, base themselves on the European Communities Act 1972, which, they say, directs them to apply EU law. German courts rely on the wording of the German Constitution. 16/n
Be that as it may... the key point is that if you feel that an EU law rule has been breached (by the State or by another private party), you can bring an action in the national courts, which will seek to provide you with a remedy. 17/n
National courts typically decide these cases without recourse to the CJEU, but if there are EU law questions (about eg the status or interpretation of EU law rules), they are able to refer those to the CJEU, which can then seek to ensure uniform interpretation. 18/n
Importantly, cases cannot be appealed to the CJEU. Also, the CJEU cannot demand a reference from a national court. So... the enforcement of EU law depends very much on the trust and cooperation of national courts. 19/n
The system is far from perfect, but it works tolerably well. Where rules are breached, those breaches can be quickly rectified. The contrast with the WTO (where all there is, is a somewhat pale version of the EU's public enforcement mechanism) is stark. 20/n
Brexit (unless it involves remaining in the customs union and single market) involves breaking this system of law enforcement. The EU Withdrawal Act represents an attempt to ensure that the positive aspects of the existing system are not all lost. 21/n
But, the costs of 'ending the jurisdiction of the CJEU' (a phrase little understood by many who parrot it...) will be high. And will make the enforcement of international trading norms in the UK much more difficult. 22/22
