{"id":17527,"date":"2021-10-22T15:10:43","date_gmt":"2021-10-22T15:10:43","guid":{"rendered":"https:\/\/factcheckni.org\/?p=17527"},"modified":"2022-02-27T21:58:44","modified_gmt":"2022-02-27T21:58:44","slug":"is-the-court-of-justice-of-the-eu-the-supreme-court-for-all-protocol-issues","status":"publish","type":"post","link":"https:\/\/factcheckni.org\/topics\/europe\/is-the-court-of-justice-of-the-eu-the-supreme-court-for-all-protocol-issues\/","title":{"rendered":"Is the Court of Justice of the EU the supreme court for all Protocol issues?"},"content":{"rendered":"\n

The Court of Justice of the European Union is the ultimate arbiter on certain<\/i> Articles of the Protocol, and has an indirect role in interpreting EU laws as part of the agreed arbitration process. <\/b><\/p>\n\n\n\n

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During an interview on BBC Radio Ulster\u2019s The Nolan Show<\/i> on 11 October 2021 (starts 23:43<\/a>), the TUV leader, Jim Allister MLA, claimed that the European Court of Justice \u2014 as part of the Court of Justice of the European Union (CJEU) \u2014 is the supreme court regarding any challenge to the Northern Ireland Protocol:<\/p>\n\n\n\n

\u201cYou know, in any international trade deal, the mechanism for arbitration is independent arbitration. In this protocol, it’s so one-sided that the arbitrator is the EU themselves\u2026 [The Court of Justice of the European Union is] their supreme court. Northern Ireland has a supreme court. It sits in London, but not under the protocol. Under the protocol, our supreme court on all protocol issues sits in Luxembourg.\u201d<\/i><\/p><\/blockquote>\n\n\n\n

In a previous fact check, FactCheckNI explained how EU law applies in Northern Ireland under the Protocol<\/a>. We concluded that the legal implementation of the Protocol had already been provided for in UK law, and that any necessary legislation can be passed in the Northern Ireland Assembly or in the UK Parliament at Westminster, according to respective legal competence and political will.<\/p>\n\n\n\n

What does \u201csupreme court\u201d mean here?<\/b><\/p>\n\n\n\n

This fact check considers the enforcement and dispute resolution mechanisms set out in the UK-EU Withdrawal Agreement and the Protocol, in relation to the implementation of the Protocol.<\/p>\n\n\n\n

While the European Court of Justice (ECJ) is often singled out in discussion and debate, it is just one of three courts that make up the Court of Justice of the European Union (CJEU)<\/a>. The other two courts are the General Court, and the European Civil Service Tribunal. This fact check considers the CJEU, as all three component courts retain jurisdiction in respect to specified Articles of the Protocol.<\/p>\n\n\n\n

Mechanisms for the enforcement of the Protocol<\/b><\/p>\n\n\n\n

The UK-EU Withdrawal Agreement<\/a>, including the Protocol<\/a>, established two mechanisms for ensuring that the Protocol is enforced and\/or that disputes concerning its implementation can be resolved:<\/p>\n\n\n\n

  1. the Court of Justice of the European Union has jurisdiction<\/a> for any disputes arising under Article 12(2), Article 5 and Articles 7 to 10 of the Protocol; and<\/li>
  2. an arbitration panel<\/a> to handle any disputes arising under those Articles not directly covered by the CJEU continued powers (i.e., Articles 1 to 4, Article 6, and Articles 11 to 19).<\/li><\/ol>\n\n\n\n

    Let\u2019s consider the nature of these two enforcement mechanisms in greater detail.<\/p>\n\n\n\n

    CJEU jurisdiction<\/strong><\/p>\n\n\n\n

    Under Article 12(4)<\/a> of the Protocol, the Court of Justice of the European Union retains jurisdiction in the United Kingdom for the purposes of ensuring certain aspects of the Protocol are enforced.<\/p>\n\n\n\n

    This means that the EU\u2019s highest court \u2014 the CJEU \u2014 has \u201cfull jurisdiction\u201d in relation to the operation of EU law that applies to Northern Ireland in certain areas. The areas covered are:<\/p>\n\n\n\n