Is the European Court over-reaching its powers?

Lawyer and QC Marina Wheeler has waded into the Brexit debate – with an article that has attracted attention because her husband Boris Johnson has still to declare his position on Brexit. Wheeler maintains in a blog, some of which was also published as an article in the eurosceptic Spectator, that the Court of Justice of the EU (CJEU) in Luxembourg – of which the European Court of Justice (ECJ) is a part – is engaging in “jurisdictional muscle-flexing” by ruling on rights that go beyond its remit.

The court’s reach “has extended to a point where the status quo is untenable,” Wheeler writes.

In her account, when the court’s powers were extended by the Charter of Fundamental Rights under the 2007 Lisbon Treaty, it was loudly proclaimed it did not extend EU competences and would apply only when a Member State was implementing EU law. Exactly what that means is subject to debate. But, in principle, the Charter represents a check on EU powers, not a fillip to it. According to lawyers, it is about ensuring that the EU’s own institutions comply with human rights law, just as national ones do.

But Wheeler believes recent court rulings have created “new – or newly and differently-defined – rights” – for example, on employment law, or against anti-terror legislation – that supersede British laws.

However, other legal experts dispute her contentions, citing precedents that date back to the 80s.

Employment law

The case Wheeler refers to for employment law is on unfair dismissal – and is known as the Benkharbouche case, after the name of the defendant. In fact, the case hinges on the longstanding right to a fair trial, not employment rights as such.

Aidan O’Neill – a QC who has written extensively on the matter – notes the Court has sometimes been “activist or opportunistic” in applying the Charter. However, it is not overstepping into new areas. The Charter itself was a confirmation of the case law that had gone before, he said.

Telecoms data

Wheeler also points to a court ruling in April 2014 that struck down EU rules requiring mass retention of telecoms data. She maintained that new safeguards for data access constituted a “new invention” by the court that went beyond any existing laws.

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But while going against data retention provisions was a significant step by the court, effectively ruling out mass surveillance in the EU, Steve Peers, Professor of EU Law at the University of Essex, does not see it as a strikingly new departure. Both the Luxembourg court and the European Court of Human Rights have said terror legislation should not lead to untrammelled government powers.

Arguing the court has been hyperactive is not the same as arguing for Brexit. And indeed, Wheeler confirmed to InFacts she was not writing in support of leaving the EU – “I am pressing for reform”, she says.

Edited by Yojana Sharma