ECJ loss rate doesn’t show injustice

by Jack Schickler | 12.04.2016

Myth: UK’s ECJ loss rate is an injustice

InFact: Britain loses 75% of ECJ cases only because EU Commission brings cases it expects to win. On this measure, Britain does better than France, which loses 90%. The UK wins significant cases, and also benefits when EU law is properly enforced in other countries.

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The UK loses 75 per cent of cases at the European Court of Justice (ECJ), says Vote Leave. For the Sun, this is an “injustice for Britain”. “Proof of meddling”, says the Daily Express.  And, says Vote Leave, the problem is getting worse, as “the rate at which the UK has been defeated has also been increasing”.

But the evidence does not justify this alarmism. The legal statistics largely just show that the European Commission only brings cases against Britain that it thinks it can win. The UK does no worse than other comparable EU members. And Vote Leave’s complaint overlooks the advantages of a vigorous pan-European legal system, which ensures that EU rules are enforced fairly and consistently across the single market.

Vote Leave bases its claims on the 131 ECJ cases involving the UK since we joined the EU. We lost 101, so Vote Leave announces our “failure rate” as 77.1 per cent, rounded down to 75. The campaign adds that the number of failures per year is increasing: in the ten years to 2005, the UK lost 27 cases; in the subsequent decade, it lost 42. Finally, Vote Leave asserts that the share of cases lost is rising. Since 2010, the UK has lost 80 per cent.

The last claim is most easily dispensed with. A rise in the share of cases lost from 77 per cent to 80 per cent is insignificant, and disappears depending on the period chosen. As to the trend in absolute numbers, Vote Leave is right that the UK is losing more cases each year. But we are winning more as well.

That still leaves the complaint that the UK has lost over three-quarters of all cases, an apparently troubling proportion. But it is important to understand that most cases – 91 of the 131 – involve the Commission taking the UK to court for failure to implement EU law. The Commission won’t bring such cases unless its lawyers reckon it will win. So it should come as no surprise that the Commission won 77 out of the 91 cases that it brought against the UK, or 84.6 per cent. The UK fared somewhat better in the remaining 40 cases, losing 24, or 60 per cent. Taking both types of case together, Britain does not seem to do particularly badly compared to other EU countries. Of the 50 most recent cases involving France, for example, the French lost 90 per cent.

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    The ECJ has proved itself capable of siding with Britain and against European institutions when Britain has had the stronger legal argument. Last year the court took our side after the European Central Bank sought to prohibit the clearing of euro-denominated financial instruments in London. That judgment was a significant win for the City of London – a win that might be reversed if Britain left the European Union and lost the ability to appeal against the European Central Bank based on the rules of the single market. Likewise, a recent opinion on benefits for EU migrants – though not binding – suggests we might be about to get our way on that issue too.

    But the larger point is that the ECJ’s efforts to make other countries implement EU law consistently often benefit Britain. Indeed, in some cases Britain weighs in on the side of the European Commission against other EU countries, and benefits when the ECJ obliges those other countries to drop policies that harm our interests. When France recently restricted imports of goat and sheep milk amid concerns over scrapie – a condition related to mad cow disease – Britain supported the European Commission in taking France to the ECJ, and won. Yet this sort of victory appears nowhere in Vote Leave’s analysis.  

    This article is an adaptation of a piece that previously appeared on InFacts

    Edited by Hugo Dixon