Theresa May has failed to get the EU to agree that Britain will retain a voice at the European court of justice in return for her concession that the Luxembourg court will retain a role in protecting citizens’ rights in the UK after Brexit.



Downing Street had suggested a British national should remain in the court as one of the 11 advocates general, who present opinions to the judges before their rulings.

It is understood that UK negotiators argued the rules stipulating that advocates general should come from member states were less rigid than those for judges.

The issue had been left open for further talks in the new year, but the Guardian understands that EU diplomats have ruled out the proposal among themselves.

If that stands, the ECJ will not have any British members in the court when it rules on future disputes with the UK government about the rights of the 3.2 million EU nationals currently living in Britain.

Smaller member states wait years for their nationals to take senior positions in the court, and EU diplomats had been appalled at the idea of a non-member state being given special dispensation. Even the suggestion was regarded as an indication of the British government’s belief in its “exceptionalism”.

Q&A What is the European court of justice (ECJ)? Show The Luxembourg-based court of justice of the European Union is the highest court in Europe. Panels of judges from member states sit to interpret whether EU law is being fairly applied and can issue binding rulings over national courts. It is composed of one judge per member state, although it normally hears cases in panels of three, five or 15 judges. The 28 judges are assisted by assisted by 11 Advocates-General. The ECJ has had a relatively benign history with the UK – unlike the more contentious European court of human rights in Strasbourg – but nonetheless has become a symbol of compromised sovereignty during the Brexit referendum. The EU has insisted that any transition period during Brexit must continue to be policed by the ECJ.

Vince Cable, the Liberal Democrat leader, said: “Theresa May has left Britain in the worst possible position, beholden to the EU court but with no representatives on it.

“Once again this government’s incompetent handling of Brexit is damaging the national interest. People should have the right to reject a Brexit that will leave the country poorer, more divided and with less influence on the world.”

The development is likely to make the prime minister’s acceptance of a continued role for the ECJ and its rulings in British courts ever more unpalatable for pro-Brexit MPs in her party.



May claimed earlier this year that removing Britain from the jurisdiction of the court was a test of whether the country had really left the EU.

However, a draft joint text between the European commission and the British government last week confirmed the UK had agreed that British courts would take “due regard” of ECJ rulings made before 29 March 2019, when Britain is due to leave the EU.

Downing Street has also agreed to a system in which UK courts could voluntarily ask for the Luxembourg court’s interpretation on cases, although British officials have insisted they would not be binding.

A draft resolution of the European parliament, seen by the Guardian and due to be voted on next week, confirmed the UK has “accepted the competence of the [ECJ] in relation to the interpretation of the withdrawal agreement”.

It also confirmed that Britain has guaranteed the rights of future children of those covered by the withdrawal agreement, and that they will be able to export social security payments abroad, including the winter fuel allowance.

The British government wants to insert a sunset clause limiting to five years the time in which the ECJ will have a role in disputes. The number of years was left blank in the draft joint text leaked last week, indicating that it was the subject of negotiation.



Philippe Lamberts, the leader of the Greens in the European parliament, who has seen the text, told Politico: “May wants the shortest possible time limit. The EU wants 15 years.”

There are 28 judges sitting on the ECJ – one for every member state. The UK will lose the place held by Christopher Vajda when it leaves the EU.

It had been hoped, however, that Britain could retain the place occupied by Eleanor Sharpston, the current British advocate general.

Sir David Edward, a former British judge on the ECJ, said: “There is a legal argument. The treaties say nothing about the nationality of the advocates general. But of course the other member states will reject it. I’m not surprised there is an argument.”

Sharpston’s term ends on 6 October 2021, and the UK may seek to keep her in post at least until the end of any Brexit transition period.

Advocates general are expected to take an impartial and independent view on cases. Their role is to consider written and oral submissions to the court, and deliver an opinion on the legal solution, which is not binding on the judges.

Sharpston, a fellow of King’s College, Cambridge and a former joint head of chambers in London, who has been at the ECJ since 2006, said the British influence on the court had been positive.

“It would be a pity to lose this contribution,” she said. “The quality of what is done within EU law is enriched by having a strong contribution by good common law [practitioners] coming from the UK and Ireland.”