This procedure would allow the commission to take the UK to the ECJ in any case where the UK authorities or the UK courts were to adopt an interpretation of UK law in EU-matching areas differing from that favoured by the commission. The commission would raise a dispute, and unless the UK were to give in in the joint committee, the matter would be referred to arbitration. Where the substance of the dispute was about the interpretation of the EU law which the UK was supposed to match, the arbitration panel would simply act as a post box, sending the question in dispute off to Luxembourg for decision.
While it appears that direct references from UK courts to Luxembourg would end, this procedure matches by a slightly different route the current procedure where the Commission can take a direct action against the UK as a member state for failing to apply or interpret EU law correctly.
The claim in the final sentence of para 42 [see 4.08pm] that this procedure “would respect the principle that the court of one party cannot resolve disputes between the two” is therefore clearly wrong and it is quite absurd to make this claim. In cases where the dispute is about the interpretation of the EU rules that we must follow, the arbitration panel would merely act as a postbox and the decision of substance would be taken by the court of one party, the ECJ. The panel would then just pronounce a formal judgment in accordance with the ECJ ruling.