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Judicial Protection and the UK’s Opt-Outs: Is Britain Alone in the CJEU?

Kendrick, M. ORCID: 0000-0001-7707-0400 (2016). Judicial Protection and the UK’s Opt-Outs: Is Britain Alone in the CJEU? In: Birkinshaw, P. & Biondi, A. (Eds.), Britain Alone! The Implications and Consequences of United Kingdom Exit from the EU. (pp. 165-182). Alphen aan den Rijn, Netherlands: Kluwer Law International B.V..

Abstract

Divergence of views on the policy areas and laws of the EU, between its constituent Member States, is not a new phenomenon. Differentiated application of EU laws, put in place by Treaty Protocols, has been a feature of the Union since the Treaty of Rome. There are now various mechanisms of flexible integration in the Union. One of the most significant is that found in Articles 20 TEU and 326 to 334 TFEU, on enhanced cooperation. The constitutional impact of the mechanisms of differentiated integration and their theoretical underpinnings have and continue to be discussed at length in political and legal academic literature. However, what is discussed with comparative infrequency is the fact that these mechanisms are being tested in the judicial forum.

In considering some of the key cases involving the United Kingdom and flexibility mechanisms, this chapter will critique the Court’s often haughtily detached decisions which leave Member States opting out without judicial protection. However, in fairness to the Court, it will also be argued that the Member States do not crown themselves in glory in their use of the system. This chapter will therefore submit that the judicial forum should be used as a system in which the non-participating Member States are protected, as are the mechanisms of flexible integration, and that responsibility lies equally with all of the parties involved; the Member States, the EU institutions and the Court. This would not only be beneficial for the Union in the long run but essential for the preservation of the rule of law through a complete and coherent system of legal remedies and procedures.

Publication Type: Book Section
Additional Information: Reprinted from Britain Alone! The Implications and Consequences of United Kingdom Exit from the EU, (2016), with permission of Kluwer Law International.
Subjects: H Social Sciences > HD Industries. Land use. Labor
J Political Science > JN Political institutions (Europe)
J Political Science > JN Political institutions (Europe) > JN101 Great Britain
K Law
Departments: The City Law School > Academic Programmes
The City Law School > Institute for the Study of European Laws
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