The EU courts are not like our courts. They are given a specific purpose of advancing the union. That purpose can be hard to spot and does get denied. I would say that is a court being required to do politics. Our courts do not try to advance the interests of our country – they just do law.
In 2014 on the EU Courts the more diplomatic Foreign Office said ‘Both principles [subsidiarity and proportionality] are “legal” principles in that the EU institutions are bound by them and cannot legally act in breach of them. However, given their nature, they require significant political judgment’. Those quote marks in paragraph 2.7 are doing a titanic amount of heavy lifting.
But they are not like our courts and we’ve just seen the European Court of Justice accused of constructing a parallel universe by one eminent professor of law and being akin to something out of Alice in Wonderland by another.
So what’s happened? Well, a lot comes down to the type of lawyers I, and these two professors, are. We are private international lawyers. Just as inside the UK I play my part in making the economy function, so outside the UK this type of law keeps the global economy ticking along. And unlike public lawyers, we are not constantly exposed to politics in our day jobs.
Now, if you are a member of the EU there is a system where each member state recognises each other state’s courts as legitimate. Lots of courts exist around the world and just as we only recognise some parts of international law – so other countries, including the EU, only recognise some courts.