What does it mean to comply with EU law? Brexit and the problem of over-deference to the Court of Justice

National judges and Member State governments have an obligation to be assertive about national interests threatened by EU policies, even to the extent of challenging existing doctrines of law, proposing new interpretations, and insisting on the proper division of judicial functions, for they have particular knowledge and understanding of the consequence of EU law. Sometimes, given the doctrine of conferral, they may have to deny force to the views of the Court of Justice. An unquestioning obedience to the Court is not loyalty, but subversion of an essential legal dialogue, and of the core principles of EU law. It also undermines the ability of the EU and its states to together build a legal system which contributes to wellbeing, and amounts to a failure to take responsibility. The Brexit debate is a case study in this: despite claiming publicly that mass migration was threatening essential and legitimate public interests, the UK did not attempt to use the available doctrines or derogations to defend these, behaving as if legal orthodoxy was fixed in stone, and the only options were leave or accept. It would have been more loyal, more European, more helpful to Europe, to impose unilateral restrictions and defend them vigorously with evidence and good arguments. This paper will look at the possibilities within existing EU law to restrict free movement of persons and workers, and argue that they have been too narrowly interpreted. It will further consider whether the British approach to EU law is influenced by its lack of a hard constitution, and its tradition of judicial subservience to higher courts. Lacking either a big stick or the tendency to talk (back) loudly, the UK may experience EU law as more oppressive and controlling than some other states do.

Gareth Davies is professor of EU law at the Free University (Vrije Universiteit) in Amsterdam. He was previously a lecturer at the University of Groningen and a barrister in London. His interests are in free movement law and EU constitutional law, particularly that relating to the scope of competences, and the interaction between European and national interests and powers.