Luxembourg Judicial Style With or Without the UK

Authors

Fernanda Nicola, American University Washington College of LawFollow

Document Type

Article

Publication Date

2017

Journal

Fordham International Law Journal

Volume

40

Issue

5

Abstract

“Were the Court to leave the world, the world would continue without our participation,” 1 writes Justice Breyer to explain that global constitutionalism will survive regardless of the more or less isolationist role that the US Supreme Court chooses for itself. In an era of increasing relevance of international treaties, Breyer explains, the Supreme Court has acquired a deeper knowledge of other legal systems and its judges welcome exchanges with foreign judges, bar associations and students.2 The parallel with the US context is that even if the United Kingdom leaves the EU and “Brexit means Brexit,” in its harder or softer version, its domestic courts will not become secluded nor change their judicial style as soon as a new Treaty between the UK and the EU is concluded. Similarly, the transnational judicial style of the Court of Justice of the EU (“CJEU”) interpreting European law is unlikely to change because of Brexit. The influences of EU law on UK law and vice-versa will endure. If French remains the working language of the Court of Justice, there is no doubt among lawyers and judges that English will remain the most common spoken language for working at or with the Court. So even if the Luxembourg judicial style will not change much more than it already did in incorporating a common law jurisdiction in its predominantly continental legal style, the biggest consequence of Brexit is the end of flux of preliminary references coming from the UK lower courts to Luxembourg.3 Since 1973 the judicial dialogue between UK courts and Luxembourg has transformed the judicial hierarchy and the legal practice of domestic courts. Terminating the “direct” jurisdiction4 of the CJEU on UK courts, as Prime Minister Theresa May has forcibly demanded, will not end the more indirect influence of EU law on UK courts and its lawyers.

Recommended Citation

Fernanda Nicola, Luxembourg Judicial Style With or Without the UK, 40 Fordham International Law Journal (2017).
Available at: https://digitalcommons.wcl.american.edu/facsch_lawrev/997