One of the most contentious issues in EU/UK relations after Brexit is going to be the extent to which there is still some residual connection between the UK and the EU’s Court of Justice.
At first, that issue will arise in the withdrawal agreement which is being negotiated, a draft of which was tabled by the EU Commission last week. It will eventually arise to some extent also in the future relationship between the two sides, but let’s focus on the withdrawal agreement for now.
In this article, I analyse the main issues, annotate part of the proposed withdrawal agreement, and propose a number of amendments to the text. Note that some issues raised are particularly relevant to the acquired rights of EU27 and UK citizens – which will be the subject of my next annotation and analysis. (I have previously annotated and analysed the proposed text on the transition (implementation) period, and the Irish border).
Structure of the withdrawal agreement.
The main provisions on dispute settlement appear in the “Final Provisions” in Part Six of the draft withdrawal agreement (Articles 151-168).
Within Part Six, there are four titles:
Title I on “Consistent Interpretation and Application” (Articles 151-156), which covers some aspects of ECJ jurisdiction, plus also a national authority in the UK to defend EU27 citizens’ rights, and other provisions;
Title II on “Institutional Provisions” (Articles 157-159), which sets up the Joint Committee to monitor and apply the Agreement;
Title III on “Dispute Settlement” (Articles 160-165), which contains provisions on the ECJ as well as unilateral sanctions; and
Title IV on “Final Provisions” (Articles 166-168).
However, for a full understanding of the issues, it’s also necessary to mention some aspects of the other Parts of the draft agreement, which comprises: the “Common Provisions” in Part One (Articles 1-7); Part Two on citizens’ rights (Articles 8-35); the “separation provisions” (Part Three: Articles 36-120); the transition (or implementation) period (Part Four: Articles 121-126); the financial settlement (Part Five: Articles 127-150); the “Final Provisions” in Part Six (Articles 151-168); and the Protocols on Ireland and UK bases on Cyprus (the latter Protocol is blank so far).
As a Member State, the UK is covered by the ordinary jurisdiction of the ECJ, which comprises, among other things, references from national courts on the interpretation or validity of EU law (Article 267 TFEU), direct challenges to acts of the EU institutions or other bodies (Article 263 TFEU), and infringement actions against Member States which have allegedly violated EU law, usually brought by the EU Commission (Articles 258-260 TFEU).
However, it is unusual for non-EU states to be subject to the ECJ’s jurisdiction. It only has a role when international treaties which the EU has signed make reference to EU law. This is hard to avoid from the EU’s perspective because according to the ECJ’s case law, it breaches EU law for non-EU bodies to give an interpretation of EU law which binds the EU (see Opinion 1/92 and Opinion 1/00).
Dispute settlement, ECJ and the withdrawal agreement: an overview.
The first rule in the draft withdrawal agreement relevant to the ECJ appears in Article 4(4), which requires references to EU law in the agreement to be interpreted in accordance with ECJ case law prior to the end of the transition/implementation period. Article 4(5) requires subsequent ECJ case law to be taken into account. EU law is defined broadly in Article 2, and Article 5 states that it includes amendments to EU law going up to the end of the transition/implementation period. Article 4(1) to (3) require that the withdrawal agreement has the same legal effect and rules of interpretation as when the UK was a Member State, and that it be incorporated into primary legislation in the UK. In particular EU27 citizens must be able to invoke directly in UK courts the rules on their acquired rights set out in Part Two of the Agreement.
During the transition/implementation period, the ECJ has its ordinary jurisdiction as regards the UK (Article 126). When that period ends (the Commission proposes the end of 2020: see Article 121), Part Three of the Withdrawal Agreement, on separation provisions, contains a number of special rules on the ECJ’s jurisdiction. Articles 82-87 specify that the Court will retain jurisdiction for any cases pending at the end of the transition/implementation period, and indeed for many cases which relate to events before that date which might be sent to the Court afterward (Article 83). There’s a special rule if the UK does not comply with an administrative decision of an EU body before the end of the transition/implementation period (Article 91).
If the proposed “fallback” rules on the Irish border apply, the ECJ have its ordinary jurisdiction as regards the rules in the Protocol on Ireland indefinitely (Article 11 of the Protocol), and there will be an indefinite requirement to interpret the EU law rules in that Protocol consistently with ECJ case law (Article 12(2) of the Protocol).
As for the core rules on the ECJ and dispute settlement, Part Six opens with special jurisdiction for the CJEU to rule on citizens’ rights issues following requests from courts in the UK for eight years after the end of the transition/implementation period (Article 151). The UK must set up an independent authority to help EU27 citizens enforce those rights (Article 152). Also, the CJEU retains jurisdiction to rule on the separation provisions and EU law aspects of the financial settlement after the end of the transition/implementation period (Article 153).
There will be a Joint Committee set up to monitor and implement the agreement (Articles 157-159); that’s not contentious as such. But the difficult issue will be its role in dispute settlement between the EU and the UK. (Disputes brought by individuals and companies will be thrashed out in the national courts, with possible references to the ECJ in light of its broad proposed jurisdiction).
After the end of the transition/implementation period, a dispute about interpretation between the parties to the agreement would first be discussed in the Joint Committee, which could decide to ask the ECJ to decide it, if both parties agree. After three months, if the dispute was not settled, either party could unilaterally invoke the ECJ’s jurisdiction (Article 162). If the Court’s ruling in that case was allegedly not complied with, the Court could be asked to rule again on the non-compliance, this time imposing a fine (Article 163(1) and (2)). Alongside this there would be the possibility of either side imposing sanctions on the other (Article 163(3)).
Finally, during the transition/implementation period, if the EU side believes that the UK had not complied with an ECJ ruling, it could suspend some internal market benefits for the UK. There is no corresponding power for the UK.
So far the UK has agreed to only parts of these proposals, mainly the points concerning citizens’ rights and the transition/implementation period, along with some aspects of the separation provisions. (See the joint report of the EU and UK from December, discussed here as regards citizens’ rights and here as regards other issues, along with my annotation of the proposals on the transition/implementation period.) It has, in particular, not agreed to the provisions on dispute settlement.
Are the Commission’s proposals justified as a matter of law and policy – or are the UK’s objections to them convincing? First of all, the provisions on EU27 citizens’ rights simply elaborate on a previous compromise agreed between the UK and the Commission, concerning special ECJ jurisdiction for eight years and an independent authority in the UK. On the latter point, the Commission’s proposals could be strengthened a great deal, plus there is no justification for delaying the creation of the independent authority until the end of the transition/implementation period, as EU27 citizens will likely need assistance before then. So I have suggested amendments to Articles 152 and 168 of the proposal.
Secondly, the agreed ECJ jurisdiction during the transition/implementation period simply reflects the overall position that EU law and the EU institutions will apply as usual regarding the UK during this period (apart from the absence of UK presence on the institutions). It would have been preferable to “dock” the UK in to the EFTA Court during this period instead, where it would have its own judge, possibly also applying the EEA Treaty for at least some period so that is has greater input into EU law (but applies less of it). But the UK government seems uninterested in this idea.
This brings us to the parts which have not been agreed, and are likely to be controversial. In my view, it is entirely understandable for the UK to aim to limit the jurisdiction of the ECJ post-Brexit as much as possible, on the grounds that it is not a Member State any longer and the ECJ’s jurisdiction over non-EU countries is traditionally limited. Having said that, it’s impossible to avoid the ECJ’s own “red lines” in its case law noted above: it breaches EU law for non-EU bodies to give an interpretation of EU law which binds the EU. The obvious difficulty here for the UK, given its “red line” of avoiding future ECJ jurisdiction, is that the withdrawal agreement inevitably makes a number of references to EU law. There might be less difficulty avoiding the ECJ as regards the future UK/EU relationship – but that depends upon the contested question as to how much EU law the UK will still apply after Brexit.
Seen in that light, the Court’s continuing jurisdiction over separation issues (which detail how various EU laws will cease to apply to the UK) and EU law rules in the financial settlement provisions would be nearly impossible to avoid. Any disputes between the UK and the EU in these provisions could only be settled by the ECJ, due to the ECJ red line. So the jurisdiction on those issues in Article 153 probably has to stay.
It’s a different question as regards non-judicial sanctions, however. First of all, the prospect of unilateral sanctions by the EU against the UK for failure to comply with a judgment during the transition/implementation period is both unnecessary and simply obnoxious. Unnecessary because – at the EU’s own insistence – the usual jurisdiction of the ECJ will apply during that period, including the remedy of the ECJ imposing fines for lack of compliance with its prior rulings. There’s no time limit problem here, since – again under the Commission’s own proposals – cases against the UK pending at the end of the transition/implementation period won’t simply lapse, but will be decided afterward. Obnoxious because this remedy would apply to the EU side only (as if no EU27 Member state has ever breached EU law!), it would hypocritically treat the UK as both a Member State and a non-Member State at the same time, and it eschews any attempt at resolving the dispute politically (as well as circumventing the usual requirement for the party alleging the breach to discharge the burden of proof of proving its claim in the ECJ). It’s not even explicit that the EU’s decision could be judicially reviewed – although it would breach the EU principle of the rule of law if it could not be.
Secondly, after the end of the transition/implementation period, it’s more complicated: there would be an attempt at political dispute settlement, followed by a possible jurisdiction for the ECJ, followed (if an ECJ ruling was allegedly not complied with) by a request for the ECJ to apply sanctions. There’s also a random provision allowing for more sanctions, which should be booted into legal orbit forthwith due to its poor legal drafting.
Here there’s confusion between treating the UK as a Member State (compulsory ECJ jurisdiction) and as a non-Member State (sanctions). The better course would be to accept that it will be a non-Member State – focussing, like the EEA treaty with other non-Member States, on a potential sanction (which either side could apply) if an attempt at dispute settlement fails. The possibility of asking the ECJ to rule could remain as an option, limiting its jurisdiction to the interpretation of EU law.
All these comments – and some more technical points – are spelled out in more detail in the annotated text of Part Six attached, which also makes a number of suggestions for amendments of the proposed text.🔷
Barnard & Peers: chapter 10, chapter 27
(Steve Peers’ original piece was supported by an ESRC Priority Brexit Grant on 'Brexit and UK and EU Immigration Policy'.)
(This piece was first published on EU Law Analysis.)