Guide to the Brexit Negotiations

ORIGINAL PUBLISHED ON EU LAW ANALYSIS

Professor Steve Peers

Last week the Brexit process formally got underway, as the UK formally sent the ‘Article 50’ withdrawal letter to the EU on March 29, and the EU in turn drew up a draft of its Brexit negotiating guidelines.

The following is a detailed annotation of the text of the EU’s draft guidelines, which I compare throughout to the UK position – which is most fully set out in Theresa May’s Chatham House speech in January (discussed here). The draft guidelines might be changed before final adoption (due for April 29), but at present it seems unlikely there will be radical changes (if any), so my analysis is based on the text as it now stands. I will update this blog post if there are significant amendments.

I also make reference to the draft position of the European Parliament (EP). This is less important than the draft EU position, since the European Parliament is not (even partly) the negotiator in the talks – no matter how much it might claim to be, or how much some in the UK media believe that it is.  However, the EP position is still worth considering because the EP has a veto over the final Article 50 deal, and this power could influence the actual negotiators’ position. (There’s a full discussion of the EP’s role here). My comments are both legal and political – although we should keep in mind that most legal analysis about Article 50 TEU (which sets out the process of leaving the EU) is purely speculative in the absence of any ECJ case law.

While the initial attention in the UK has focussed on a misunderstanding of what the draft EU guidelines say about Gibraltar, the most significant issue is actually that the EU and UK in principle have many negotiating objectives in common. Most notably, the EU has accepted the UK’s objective of aiming towards a comprehensive EU/UK free trade agreement (FTA) without provisions on the free movement of persons or contributions to the EU budget.

The devil will therefore be in the considerable details. For example, the EU and UK still disagree on the timing of Brexit talks, (possibly) the role of the ECJ, financial issues (the ‘divorce bill’), the Gibraltar issue (although this will be an issue for bilateral talks with Spain), whether the UK should comply with environmental and other standards as part of a deal, and whether ‘sectoral’ deals are possible. Further points of detailed disagreement will surely emerge as the talks get underway.

Is an EU/UK relationship based on a free trade deal the right way forward? Frankly, in my view, it’s not the first or even the second best option. But it is still a vastly better option than reversion to trade with the EU on a ‘WTO-only’ basis, as some are contemplating. This would lead to significant tariff and non-tariff barriers on many goods and services traded, and therefore hurt both sides.

There’s a democratic dimension to this too. Many of those voting ‘Leave’ were particularly concerned about EU budget contributions and the free movement of people, and an UK/EU FTA would resolve both concerns. But equally the ‘Leave’ side argued repeatedly that any concerns about a drop in UK trade with the EU were misplaced, because the UK and the EU would sign a free trade agreement without commitments relating to the free movement of persons or EU budget contributions.

They also claimed that such an agreement could be reached quickly and easily, on the UK’s terms. This was an obvious falsehood, as the EU’s draft negotiating guidelines have confirmed.  But rather than focus on this untruth, I believe we should move forward. It’s up to the government to move on with the negotiations, never forgetting that a reversion to a WTO-only trading relationship with the UK’s largest trading partner would both make a nonsense of the government’s aim of a free-trading ‘Global Britain’ and lack the slightest shred of democratic legitimacy. Moreover, it would damage both sides, and in particular put many people in the UK out of a job. These negotiations won’t be easy, but they are necessary. The time for fantasies, flag-waving and faffing about is over.

Annex I

On 29 March 2017, the European Council has received the notification by the United Kingdom of its intention to withdraw from the European Union and Euratom. This allows for the opening of negotiations as foreseen by the Treaty.

Note that the guidelines refer throughout to ‘negotiations’. Some have erroneously asserted that the EU will draft a text and present to the UK on a ‘take-it-or-leave-it’ basis. This is incorrect: Article 50(2) TEU refers several times to ‘negotiations’, and the draft guidelines reflect this.

The guidelines do not refer to any possible withdrawal of the UK notification, although the EP resolution (point L) assumes that a withdrawal of the notification is possible with consent. There is also an argument that the time period for withdrawal in Article 50 could be extended indefinitely. I will return to this issue another time.

Some have speculated that the EP might insist that the UK hold a referendum result on the outcome of the talks, as a condition for its consent to the deal. This would almost certainly backfire spectacularly, and in any event the draft EP resolution does not address this.

European integration has brought peace and prosperity to Europe and allowed for an unprecedented level and scope of cooperation on matters of common interest in a rapidly changing world. Therefore, the Union’s overall objective in these negotiations will be to preserve its interests, those of its Member States, its citizens and its businesses.

The United Kingdom’s decision to leave the Union creates significant uncertainties that have the potential to cause disruption, in particular in the UK but also in other Member States. Citizens who have built their lives on the basis of rights flowing from the British membership of the EU face the prospect of losing those rights. Businesses and other stakeholders will lose the predictability and certainty that come with EU law. With this in mind, we must proceed according to a phased approach giving priority to an orderly withdrawal.

The EU expressly asserts here its goal of an ‘orderly withdrawal’. Indeed Article 50(2) creates an obligation to negotiate with the withdrawing Member State (implicitly in good faith, as with any other negotiation under international law). Legally the wording of Article 50 equally suggests it aims to ensure an orderly withdrawal, and the ECJ is very likely to interpret it the same way. This necessarily implies that the EU cannot simply walk away from negotiations. However, in the event of a legal challenge it is unlikely (based on its prior case law on the EU’s international relations, which emphasises political discretion for the EU institutions) that the ECJ would rule that the general obligation to negotiate requires the EU to adopt (or refrain from adopting) specific negotiation objectives.

Politically this paragraph (and other similar references) confirms that the EU is aiming to reach a deal with the UK. So it would be false for anyone to assert that it is not.

In these negotiations the Union will act as one. It will be constructive throughout and will strive to find an agreement. This is in the best interest of both sides. The Union will work hard to achieve that outcome, but it will prepare itself to be able to handle the situation also if the negotiations were to fail.

The first sentence confirms that the EU will negotiate as a bloc, as Article 50 provides for (‘the Union shall negotiate and conclude an agreement with that State’). This does not preclude informal bilateral talks between the UK and key Member States’ governments, which is common when the EU discusses trade deals with non-EU states.

The overall tone here is diplomatic and asserts an intention to reach a deal, although the final sentence also asserts that the EU will prepare itself for a ‘no deal’ scenario as an alternative. This would likely entail getting draft EU laws ready for approval and gearing up national customs administrations et al for a UK departure presumably in one of two scenarios: a) on the date set out pursuant to Article 50; b) if the UK purports to leave the EU in breach of the terms of Article 50. In the latter scenario the EU Member States might not wait for the end of the Article 50 period, but declare that the UK has committed a material breach of the EU Treaties within the meaning of Article 60 of the Vienna Convention on the Law of Treaties, and suspend the UK from the Treaties.

The guidelines make no mention of amending the Treaties to remove reference to the UK, but one would not expect them to, since logically that is not an issue which the EU would negotiate with the UK.  It is not yet clear whether the EU will embark upon such a course; legally it might be argued that Article 50 is ‘self-executing’ in the sense that references to the UK automatically become legally irrelevant on Brexit Day. One issue might be whether other changes to the Treaties might be made at the same time; if so, this would become difficult to negotiate. Even a purely technical Treaty amendment which only removes references to the UK would take some time to ratify, so one would expect work to get underway soon, if it is going to happen – although there could be a legal problem in that in principle the UK ought to participate in the Treaty amendment process as long as it is a member. One solution might be to draw up such a treaty after Brexit Day, and backdate its application date.

Paras 30 and 32 of the draft EP resolution refer to possible changes to EU law as a result of the UK’s departure as an issue for the EU-27, although they make no specific reference to Treaty amendment.

These guidelines define the framework for negotiations under Article 50 TEU and set out the overall positions and principles that the Union will pursue throughout the negotiation. The European Council will remain permanently seized of the matter, and will update these guidelines in the course of the negotiations as necessary.

Article 50(2) states that the negotiation must take place ‘in light of’ these guidelines. It is unclear precisely what legal effect this has. For instance, could an outvoted Member State challenge the Article 50 deal for breaching the guidelines? As it happens, there is a pending ECJ case which raises (among other things) the legal effect of European Council guidelines in the asylum context, discussed here.

The predominant effect of the guidelines will of course be political; note that the European Council is prepared to ‘update’ them (ie amend or elaborate upon them further). They will necessarily be fleshed out in detail in a rather longer treaty text, on the basis of drafts tabled and negotiated by each side.

  1. Core principles
  1. The European Council will continue to base itself on the principles set out in the statement of Heads of State or Government and of the Presidents of the European Council and the European Commission on 29 June 2016. It reiterates its wish to have the United Kingdom as a close partner in the future. It further reiterates that any agreement with the United Kingdom will have to be based on a balance of rights and obligations, and ensure a level-playing field. Preserving the integrity of the Single Market excludes participation based on a sector-by-sector approach. A non-member of the Union, that does not live up to the same obligations as a member, cannot have the same rights and enjoy the same benefits as a member. In this context, the European Council welcomes the recognition by the British Government that the four freedoms of the Single Market are indivisible and that there can be no “cherry picking”.

The June 2016 statement can be found here. The second sentence matches the UK government’s objective of a future close partnership. Any ‘sectoral’ deals are excluded; this contradicts the UK government position, which had the objective of obtaining such deals. In any event sectoral deals would be potentially vulnerable to challenge under WTO rules, which require any free trade agreement to cover ‘substantially’ all trade in goods (Article XXIV GATT) or services (Article V GATS). It would however be possible for mutual recognition agreements to cover certain sectors of trade. There is no reference in the guidelines to the UK government’s objective to achieve some form of special customs agreement, except implicitly as regards Northern Ireland.

  1. Negotiations under Article 50 TEU will be conducted as a single package. In accordance with the principle that nothing is agreed until everything is agreed, individual items cannot be settled separately. The Union will approach the negotiations with unified positions, and will engage with the United Kingdom exclusively through the channels set out in these guidelines and in the negotiating directives. So as not to undercut the position of the Union, there will be no separate negotiations between individual Member States and the United Kingdom on matters pertaining to the withdrawal of the United Kingdom from the Union.

It’s not clear whether the ‘single package’ refers more narrowly to the specific issues which the EU wants to negotiate first, or the talks on later status of UK/EU relations. This is important because there is a strong case for concluding a first treaty on withdrawal issues, including in particular the status of UK and EU citizens who have moved between Member States, separately from any subsequent treaties.

This paragraph reconfirms the ‘no separate negotiations’ point already made in the guidelines. As noted above, this does not prevent some informal bilateral discussions on specific issues. For instance, UK/Ireland discussions on border issues could be significant, and the guidelines in effect require separate talks between the UK and Spain regarding Gibraltar. They also refer to bilateral UK/Cyprus issues.

Article 50 refers to the EU acting by qualified majority vote (without the UK voting), so the common assumption that any Article 50 deal must be agreed unanimously and ratified by all national parliaments is incorrect. However, some aspects of the overall Brexit deal (ie on future relationship) might entail unanimous voting and national ratification; and the EU might be unwilling to proceed with the Article 50 deal against the opposition of one or more Member States.

  1. A phased approach to negotiations
  1. On the date of withdrawal, the Treaties will cease to apply to the United Kingdom, to those of its overseas countries and territories currently associated to the Union, and to territories for whose external relations the United Kingdom is responsible. The main purpose of the negotiations will be to ensure the United Kingdom’s orderly withdrawal so as to reduce uncertainty and, to the extent possible, minimise disruption caused by this abrupt change.

This refers to the entities referred to in Article 353 TFEU, ie Gibraltar, the Channel Islands, the Isle of Man, and some small remaining semi-colonies. For a discussion of their status, see this House of Lords report. The reference to minimising disruption is important, although qualified (‘to the extent possible’).

To that effect, the first phase of negotiations will aim to:

settle the disentanglement of the United Kingdom from the Union and from all the rights and obligations the United Kingdom derives from commitments undertaken as Member State;

provide as much clarity and legal certainty as possible to citizens, businesses, stakeholders and international partners on the immediate effects of the United Kingdom’s withdrawal from the Union.

The European Council will monitor progress closely and determine when sufficient progress has been achieved to allow negotiations to proceed to the next phase.

This asserts the EU’s determination to discuss withdrawal issues before trade issues, whereas the UK has wanted to discuss them in tandem. However, the EU guidelines do not require the withdrawal issues to be fully agreed before talks on post-Brexit issues get underway. The ‘sufficient progress’ test is deliberately flexible; it can be argued that agreement in principle on the main issues will be sufficient, even if some details have to be worked out.  Para 14 of the EP draft resolution largely matches this, although the EP will not have any formal role in determining whether ‘substantial progress’ (the slightly stricter test which the EP proposes) has been met.

  1. While an agreement on a future relationship between the Union and the United Kingdom as such can only be concluded once the United Kingdom has become a third country, Article 50 TEU requires to take account of the framework for its future relationship with the Union in the arrangements for withdrawal. To this end, an overall understanding on the framework for the future relationship could be identified during a second phase of the negotiations under Article 50. The Union and its Member States stand ready to engage in preliminary and preparatory discussions to this end in the context of negotiations under Article 50 TEU, as soon as sufficient progress has been made in the first phase towards reaching a satisfactory agreement on the arrangements for an orderly withdrawal.

The EP draft resolution (point 15) also rules out conclusion of a ‘future relationship’ treaty before Brexit, so it seems unlikely to happen.

This discussion of a ‘future relationship’ between the UK and the EU (concerning trade and other issues) is separate from a possible ‘transitional arrangement’ referred to in the next paragraph (‘may also’). So it is unclear whether a transitional deal could also only be concluded after the UK leaves.

In any event, it is arguable that a longer-term deal could be concluded (or at least signed and applied provisionally) on the date of withdrawal, or failing that, it could be backdated to that date. Such an approach would be consistent with the EU’s objectives of an orderly withdrawal and minimising disruption. However, the references to ‘preliminary and preparatory’ and ‘overall understanding’ seem to rule that out.

In any event, it would be hard in practical terms to negotiate all the details of the long-term framework within the time available, even though this is Theresa May’s objective. This is particularly true given that some of the available time will be taken up negotiating withdrawal issues before moving on to the ‘future relationship’ talks.

  1. To the extent necessary and legally possible, the negotiations may also seek to determine transitional arrangements which are in the interest of the Union and, as appropriate, to provide for bridges towards the foreseeable framework for the future relationship. Any such transitional arrangements must be clearly defined, limited in time, and subject to effective enforcement mechanisms. Should a time-limited prolongation of Union acquis be considered, this would require existing Union regulatory, budgetary, supervisory and enforcement instruments and structures to apply.

It is certainly in the EU’s interest to maintain trade flows and other relationships with the UK, and as noted above this would be consistent with the EU’s objectives of an orderly withdrawal and minimising disruption. They would obviously be ‘necessary’ to the end of avoiding a switch to a WTO-only framework for trade between the UK and the EU. Again as noted already, this paragraph is unclear about when a transitional deal might be concluded, although as compared to the previous paragraph it does not explicitly state that talks could not be completed or that an agreement could not be concluded before Brexit Day. It is also vague about the relevant legal base: is it Article 50 (qualified majority vote) or other Treaty provisions (more likely to entail unanimity and national ratification)? The exact scope of Article 50 is unclear legally; the wording here suggests some uncertainty about what is ‘legally possible’, which it may be necessary to ask the ECJ to clarify (see Annex II).

The transitional deal would have to be limited in time, which could reassure those who do not want the UK to remain in such an arrangement indefinitely. It is not expressly clear that all aspects of EU membership would be carried over. In particular, it is not clear that the only transition which the EU would consider would be continuing in force the EU acquis. The distinction is important because a) flexibility on this issue could involve ending the free movement of people, or continuing it with an ‘emergency brake’, from Brexit Day; and b) an ‘enforcement mechanism’ might fall short of continuing EU ‘existing regulatory, budgetary, supervisory and enforcement’ measures. The latter phrase would logically entail keeping in force the ECJ’s current jurisdiction, while a mere ‘enforcement mechanism’ could entail a more limited role for the ECJ (no references from UK courts or direct impact on UK law) or a different dispute mechanism system entirely, such as using the EFTA Court which already exists and rules on certain EU law issues as regards Norway, Iceland and Liechtenstein. However, the more different a transitional system would be from current EU membership, the longer it would take to negotiate, and the bigger the risk of running out of time.

The UK government’s position seems to contemplate some form of interim transitional period, without calling it such. The Chatham House speech refers instead to ‘phased implementation’, during which aspects of EU law will still apply. But despite the difference in wording, fundamentally there are strong similarities between the UK and EU positions here.

The EP draft resolution is similar (para 28). It sets a maximum time limit of three years for the transitional deal, although otherwise it is as vague as the European Council draft guidelines.

  1. The core principles set out above should apply equally to the negotiations on an orderly withdrawal, to any preliminary and preparatory discussions on the framework for a future relationship, and to any form of transitional arrangements.
  1. The two year timeframe set out in Article 50 TEU ends on 29 March 2019.

It should be noted that Article 50(3) provides that the withdrawal agreement may set a different date (which could implicitly be later or earlier), and that the UK and the remaining EU, voting unanimously, may postpone the overall deadline.

III. Agreement on arrangements for an orderly withdrawal

  1. The right for every EU citizen, and of his or her family members, to live, to work or to study in any EU Member State is a fundamental aspect of the European Union. Along with other rights provided under EU law, it has shaped the lives and choices of millions of people. Agreeing reciprocal guarantees to settle the status and situations at the date of withdrawal of EU and UK citizens, and their families, affected by the United Kingdom’s withdrawal from the Union will be a matter of priority for the negotiations. Such guarantees must be enforceable and non-discriminatory.

The EU, like the UK, places priority on an early deal on the rights of each other’s citizens. While some had claimed that the EU could not or would not address this issue in the Article 50 talks, it clearly intends to do so. The reference to ‘non-discriminatory’ arrangements confirms that there will not be bilateral talks on this issue, as some people had expected. While some have claimed that the EU lacks legal power to regulate the position of non-EU citizens, Articles 77-79 TFEU confer such powers and the EU has adopted a number of laws in this area. In any event, it is strongly arguable that Article 50 confers power upon the EU to negotiate any issue which arose pursuant to the withdrawing Member State’s membership of the European Union, and the status of UK and EU citizens is one obvious example of such an issue.

The reference to an ‘enforceable’ guarantee does not necessarily entail using the ECJ. There could be some other form of dispute settlement, or a commitment to make the agreement binding in national law and to hold discussions about any issues which arise might suffice.

It should be noted that the guidelines make no reference to the idea, promoted by some in the EP, of an optional right for UK citizens to retain EU citizenship. The EP draft resolution does refer to this issue, but states that such arrangements should be reciprocal (para 27). It is hard to imagine the UK government agreeing to such a deal.

  1. Also, the United Kingdom leaving the Union will impact EU businesses trading with and operating in the United Kingdom and UK businesses trading with and operating in the Union. Similarly, it may affect those who have entered into contracts and business arrangements or take part in EU-funded programmes based on the assumption of continued British EU membership. Negotiations should seek to prevent a legal vacuum once the Treaties cease to apply to the United Kingdom and, to the extent possible, address uncertainties.

This indicates a general intention to retain contracts and legal arrangements in force, if they have been concluded before Brexit Day. This could be relevant to research funding, regional funding or farm subsidies, for instance. It could also be the basis for arguing that UK banks who already have a licence to sell financial services to the EU market can retain it.

  1. A single financial settlement should ensure that the Union and the United Kingdom both respect the obligations undertaken before the date of withdrawal. The settlement should cover all legal and budgetary commitments as well as liabilities, including contingent liabilities.

This is likely to be one of the most difficult issues to negotiate. The draft guidelines do not put a specific figure on the ‘bill’, although press reports note amounts such as €50 billion. There is no reason why the amount of any bill should be paid upfront, as some of it relates to funding over the next few years and to pensions payable over the longer term. For detailed discussions of this issue see this House of Lords report and this Brueghel report.

  1. The Union has consistently supported the goal of peace and reconciliation enshrined in the Good Friday Agreement, and continuing to support and protect the achievements, benefits and commitments of the Peace Process will remain of paramount importance. In view of the unique circumstances on the island of Ireland, flexible and imaginative solutions will be required, including with the aim of avoiding a hard border, while respecting the integrity of the Union legal order. In this context, the Union should also recognise existing bilateral agreements and arrangements between the United Kingdom and Ireland which are compatible with EU law.

The EU and UK both make a priority of addressing the border issue between Ireland and Northern Ireland. (It should be noted that there is no specific reference to Scotland in the EU guidelines; the EP resolution merely notes that Scotland voted to Remain). There are indications of great willingness to compromise here (‘flexible and imaginative solutions’) and it should be noted that Protocols to the Treaties require the EU to facilitate the operation of the Common Travel Area between the UK and Ireland (the words ‘should also recognise’ these arrangements do not adequately take account of this legal obligation). However, the Protocols do not lay down in detail what happens in the event of UK withdrawal, which therefore has to be the subject of negotiations. Equally, arguments about the history of the UK and Ireland are irrelevant, as there has never been a previous situation when one of those countries was in the EEC/EC/EU and the other was not.

  1. The Union should agree with the United Kingdom on arrangements as regards the Sovereign Base Areas of the United Kingdom in Cyprus and recognise in that respect bilateral agreements and arrangements between the Republic of Cyprus and the United Kingdom which are compatible with EU law, in particular as regards the situation of those EU citizens resident or working in the Sovereign Base Areas.

There is a specific Protocol to the 2003 Accession Treaty on the position of the UK sovereign base in Cyprus, which will presumably have to be amended in order to take account of any such agreement. Here, despite the overall EU-wide approach to talks, there is recognition that there will be a bilateral agreement between the UK and Cyprus alongside an EU-UK agreement.

  1. Following the withdrawal, the Union with 27 Member States will continue to have the rights and obligations of the Union with 28 Member States in relation to international agreements. The United Kingdom will no longer be covered by agreements concluded by the Union or by Member States acting on its behalf or by both acting jointly. The European Council expects the United Kingdom to honour its share of international commitments contracted in the context of its EU membership. In such instances, a constructive dialogue with the United Kingdom on a possible common approach towards third country partners and international organisations concerned should be engaged.

The EU position is that the UK ceases to be part of any treaty with non-EU countries within the scope of EU law – whether concluded by the EU alone, by the Member States alone (but affecting EU law) or by both together. This is particularly relevant to trade agreements (see discussion by Markus Gehring here) but affects other agreements as well (for example, environmental deals).

The UK will likely seek to secure replacement agreements with the countries concerned. This is even encouraged by the EU, which seeks a ‘constructive dialogue’ on these issues. The reference to ‘international organisations’ most obviously refers to the WTO.

In practical terms, the issue which particularly arises is ‘tariff rate quotas’, ie allowing in a certain amount of products at a low tariff. Say the EU allows 100,000 tons of olives imported from Morocco at a low tariff: the obvious solution is to split that between the UK and the remaining EU based on recent trade flows (ie how much of those olives were imported into the UK in the last three years, as compared to the rest of the EU?).

Non-EU countries will obviously have to agree to this process, and the UK might want to focus particularly on replicating those agreements with a major impact on UK exports: for instance, the EU agreements on the protection of the name ‘Scotch Whisky’.

  1. While the future location of the seats of EU agencies and facilities located in the United Kingdom is a matter for the 27 Member States, arrangements should be found to facilitate their transfer.

The intention is obviously to move these bodies as soon as possible after Brexit Day, if not before. The UK will not be involved in decisions on where they move to, but will be involved in the logistics of moving them.

  1. Arrangements ensuring legal certainty and equal treatment should be found for all court procedures pending before the Court of Justice of the European Union upon the date of withdrawal that involve the United Kingdom or natural or legal persons in the United Kingdom. The Court of Justice of the European Union should remain competent to adjudicate in these procedures. Similarly, arrangements should be found for administrative procedures pending before the European Commission and Union agencies upon the date of the withdrawal that involve the United Kingdom or natural or legal persons in the United Kingdom. In addition, arrangements should be foreseen for the possibility of administrative or court proceedings to be initiated post-exit for facts that have occurred before the withdrawal date.

The EU assumes that EU court cases pending on Brexit Day should remain within the competence of the Court to decide. This is a classic transitional issue and the EU suggestion makes sense, since the cases concern the pre-Brexit legal position. (Compare to the planned Great Repeal Bill, which will provide that pre-Brexit ECJ case law will still be binding). It is slightly more ambiguous as regards pending administrative procedures like competition law and state aid (‘arrangements should be found’). The same applies to cases with EU law issues pending in the UK courts on Brexit Day, or which are brought in the UK courts in summer 2019 relating to a 2018 tax bill, for instance.

This paragraph is too limited, as the transitional deal needs to take explicit account of all legal proceedings pending on Brexit Day pursuant to EU law, not just those which involve or may involve the EU institutions: for instance a pending claim to recognise a German court judgment in the UK, or the French authorities’ obligation to execute a European Arrest Warrant issued by the UK before that date. Most implementation of EU law is carried out by national courts and administrations, not EU bodies, and the transitional rules should take account of this.

  1. The withdrawal agreement should include appropriate dispute settlement mechanisms regarding the application and interpretation of the withdrawal agreement, as well as duly circumscribed institutional arrangements allowing for the adoption of measures necessary to deal with situations not foreseen in the withdrawal agreement. This should be done bearing in mind the Union’s interest to effectively protect its autonomy and its legal order, including the role of the Court of Justice of the European Union.

The institutional arrangements will presumably entail an EU/UK Joint Committee with the power to take decisions by joint agreement. There are similar bodies in other EU treaties with non-EU states. The first and third sentences, read together, do not explicitly insist that the ECJ have jurisdiction over the withdrawal agreement (although it will inevitably have jurisdiction as regards the EU side). The reference to ensuring EU autonomy reflects ECJ case law which states that treaties with non-EU countries cannot affect the separate development of EU law or the essential features of the Court’s powers: see Opinion 1/91 and Opinion 1/00. Compare with point 17 of the EP resolution, which explicitly calls for the ECJ to have jurisdiction over the withdrawal agreement.

  1. Preliminary and preparatory discussions on a framework for the Union – United Kingdom future relationship
  1. The European Council welcomes and shares the United Kingdom’s desire to establish a close partnership between the Union and the United Kingdom after its departure. While a relationship between the Union and a non Member State cannot offer the same benefits as Union membership, strong and constructive ties will remain in both sides’ interest and should encompass more than just trade.

The EU accepts in general the UK position of having a close partnership, including but going beyond trade. There is no explicit reference to the form of the relationship, which is relevant given that it could affect whether the EU side has to vote unanimously and ask national parliaments to ratify any treaty. (EU treaties with non-EU states can be partly applied provisionally pending such ratification).Point 22 of the EP draft resolution hints at a possible association agreement: this entails unanimous voting and usually also national ratification.

  1. The British government has indicated that it will not seek to remain in the single market, but would like to pursue an ambitious free trade agreement with the European Union. Based on the Union’s interests, the European Council stands ready to initiate work towards such an agreement, to be finalised and concluded once the United Kingdom is no longer a Member State.

The EU accepts the UK position of seeking a far-reaching free trade deal, rather than continued single market participation. Note that there is no reference to continuing with the free movement of persons or contributions to the EU budget – two key objectives of the UK side. The timing is an issue, as noted already: no finalisation or conclusion until after Brexit Day, which means that a transitional deal will be important in the meantime. Although in theory this could be on or soon after Brexit Day, there is unlikely to be enough time for that.

  1. Any free trade agreement should be balanced, ambitious and wide-ranging. It cannot, however, amount to participation in the Single Market or parts thereof, as this would undermine its integrity and proper functioning. It must ensure a level playing field in terms of competition and state aid, and must encompass safeguards against unfair competitive advantages through, inter alia, fiscal, social and environmental dumping.

It is common for EU trade agreements to make some reference to state aid and competition law, although only some of them require the non-EU state to apply EU competition and state aid law as such. The guidelines leave it open as to what exactly the EU side will aim for. In any event WTO rules also contain some restrictions on granting subsidies and set out the possibility for trading partners to retaliate if subsidies are granted, although these rules are less far-reaching and enforceable than those applying to EU Member States. (Note that the EU does not ban state aids entirely, but restricts them to certain cases).

The ‘safeguards against unfair competitive advantages’ the EU side wants refers to – among other things – ‘fiscal, social and environmental dumping’. This does not explicitly refer to the adoption of EU law by the UK, and in any event there is no EU law on minimum corporate tax rates. (Compare to para 24 of the EP resolution, which refers more explicitly to EU laws, although to ‘tax evasion and avoidance’ as distinct from tax rates). The UK might argue that it would be sufficient to remain party to international treaties on environmental law and social protection (in the ILO, the Council of Europe and the UN Covenant on Economic, Social and Cultural Rights), and to hold regular discussions on corporate tax rates – which could cut both ways. In any event, many in the UK would welcome safeguards against cuts in environmental and social standards, and would be concerned about how public services could be funded in the event of large cuts in corporate tax.

It remains to be seen what exactly the EU side would accept as safeguards, but the EU’s position should be seen in its overall context: as noted already, the EU is not insisting on free movement of people or financial contributions. It is striking that the EU side makes no explicit references to services, where the UK has a trade surplus. If the UK wants to maintain that strong surplus by having an advanced trade relationship that offers more free trade in services than the EU usually agrees (but still falling short of single market participation) this is the condition which the EU wants to set.

  1. Beyond trade, the EU stands ready to consider establishing a partnership in other areas, in particular the fight against terrorism and international crime as well as security and defence.

This matches the UK’s position. Neither side sets out any real details here.

  1. The future partnership must include appropriate enforcement and dispute settlement mechanisms that do not affect the Union’s autonomy, in particular its decision-making procedures.

There is no specific mention of the ECJ here, and the autonomy issue was discussed above. It’s not usual for the Court to have jurisdiction as regards non-EU states, bar a few exceptions like the European Aviation Area treaty, which facilitates aviation between EU and other European countries. But it is common for the EU to agree dispute settlement similar to the WTO dispute settlement system in agreements with non-EU countries. Interestingly, the EU does not use such systems in its trade agreements in practice, although it does often use the WTO.

In short, the WTO system provides for panels of experts to decide on whether there is a breach of WTO law; their decisions can be appealed to an Appellate Body. If a WTO party which was found to have breached WTO law does not comply with these rulings, the victorious party which brought the complaint can be authorised to retaliate against it with proportionate trade sanctions. Dispute settlement bodies are not unique to the EU and WTO – there is an active system in the NAFTA agreement between the US, Canada and Mexico, for instance. Such systems fall short of the legal effect of EU law in national legal systems, but still place some constraints upon the parties to trade treaties.

  1. After the United Kingdom leaves the Union, no agreement between the EU and the United Kingdom may apply to the territory of Gibraltar without the agreement between the Kingdom of Spain and the United Kingdom.

This clause has attracted much overreaction. It is not a claim to Gibraltar territory or joint sovereignty, so there is no need to respond to it with talk of military action. It merely acknowledges that the EU will not apply post-Brexit treaties to the UK unless the UK and Spain have separately agreed to this. It will be up to the UK and Spain to find agreement for each treaty, or failing that to accept that the treaty in question will either not be concluded or not apply to Gibraltar.

  1. Principle of sincere cooperation
  1. Until it leaves the Union, the United Kingdom remains a full Member of the European Union, subject to all rights and obligations set out in the Treaties and under EU law, including the principle of sincere cooperation.

This reflects the UK’s continued position that it will apply EU law until Brexit Day. Point 5 of the EP draft resolution matches it.

  1. The European Council recognises the need, in the international context, to take into account the specificities of the United Kingdom as a withdrawing Member State, provided it remains loyal to the Union’s interests while still a Member. Similarly the Union expects the United Kingdom to recognise the need of the 27 Member States to meet and discuss matters related to the situation after the withdrawal of the United Kingdom.

The first sentence is ambiguous about a key issue: can the UK already discuss trade deals with non-EU countries? It can’t conclude them without violating EU law (para 23); normally it could not negotiate them either, but does this sentence accept the argument that discussions on a post-Brexit deal would be acceptable, as a consequence of the UK’s position as a withdrawing Member State? The second sentence asserts the remaining EU’s right to meet without the UK, presumably going beyond the talks relating to Brexit without the UK present as referred to in Article 50. However, such meetings must remain informal, as the next paragraph confirms.  

Compare to point 6 of the draft EP resolution, which more explicitly argues that the UK cannot negotiate with non-EU countries before Brexit, and argues that the UK should be excluded from EU trade talks with non-EU countries if it does. Such an exclusion would not be legal; the remedy in such cases of alleged breach of EU law is for the Commission or another Member State to bring the UK to the ECJ.  

  1. While the United Kingdom is still a member, all ongoing EU business must continue to proceed as smoothly as possible at 28. The European Council remains committed to drive forward with ambition the priorities the Union has set itself. Negotiations with the United Kingdom will be kept separate from ongoing Union business, and shall not interfere with its progress.

The UK retains its formal position as a Member State until Brexit Day, although obviously it will have declining influence as there will be little interest in addressing its concerns and the other Member States merely have to wait out any veto or participation in a blocking minority vote by the UK.

  1. Procedural arrangements for negotiations under Article 50

The European Council endorses the arrangements set out in the statement of 27 Heads of State or Government on 15 December 2016.

These procedural arrangements are discussed in the next annex.

Annex II – Procedural rules

Here are the December 2016 procedural rules, with annotations.

  1. The first step following the notification by the United Kingdom will be the adoption by the European Council of guidelines that will define the framework for negotiations under Article 50 TEU and set out the overall positions and principles that the EU will pursue throughout the negotiation. The European Council will remain permanently seized of the matter, and will update these guidelines in the course of the negotiations as necessary.

This refers to the guidelines of the European Council (the Member States’ Heads of State and Government), the draft of which is now available and was discussed above. Article 50 requires the guidelines to be adopted at the start of the process.

  1. After the adoption of the guidelines, the European Council will invite the General Affairs Council to proceed swiftly with the adoption of the decision authorising the opening of the negotiations, following a recommendation by the European Commission, and to deal with the subsequent steps in the process. The Council will also adopt negotiating directives on substance as well as on the detailed arrangements governing the relationship between the Council and its preparatory bodies on the one hand and the Union negotiator on the other. These negotiating directives may be amended and supplemented as necessary throughout the negotiations, to reflect the European Council guidelines as they evolve.

This follows the normal process of EU treaty negotiation with non-EU countries, as set out in Article 218 TFEU: a Commission recommendation to start talks, and a Council mandate with detailed negotiation objectives, which may be amendment throughout the talks. That mandate will likely be more detailed than these guidelines. The General Affairs Council is made up of Member States’ foreign or Europe ministers, and meets monthly. The Council’s ‘preparatory bodies’ consist of working groups and Member States’ permanent representatives (the latter meets weekly, and is known as ‘Coreper’).

  1. The Council will be invited to nominate the European Commission as the Union negotiator. The Commission’s nomination of Michel Barnier as chief negotiator is welcome. To ensure transparency and build trust, the Union negotiator’s team will be ready to integrate a representative of the rotating Presidency of the Council. Representatives of the President of the European Council will be present and participate, in a supporting role, in all negotiation sessions, alongside the European Commission representatives. The Union negotiator will systematically report to the European Council, the Council and its preparatory bodies.

Article 50 leaves open who the negotiators will be, and some had assumed it would be the Council. Nominating the Commission follows the usual approach under Article 218 TFEU. However, including a representative of the Council Presidency (which rotates every six months) and the European Council President (Donald Tusk) in the talks is an innovation, which reflects their importance. The obligation to report back to EU bodies reflects Article 218 TFEU.

  1. Between the meetings of the European Council, the Council and Coreper, assisted by a dedicated Working Party with a permanent chair, will ensure that the negotiations are conducted in line with the European Council guidelines and the Council negotiating directives, and provide guidance to the Union negotiator.

Article 218 TFEU (and Article 207 TFEU, regarding trade) refer to Council working parties supervising Commission negotiators, so this is nothing new. As regards trade, the Commission refers to the committee which supervises it as the ‘mothers-in-law’ (don’t shoot the messenger!).

  1. The members of the European Council, the Council and its preparatory bodies representing the United Kingdom will not participate in the discussions or in the decisions concerning it.

This simply respects the wording of Article 50, extended (logically enough) to the Council’s working parties, not just to the official meetings of ministers or heads of state.

  1. Representatives of the 27 Heads of State or Government (Sherpas/Permanent Representatives) will be involved in the preparation of the European Council as necessary. Representatives of the European Parliament will be invited at such preparatory meetings.

This gives a slightly greater role than usual to the European Parliament.

  1. The Union negotiator will be invited to keep the European Parliament closely and regularly informed throughout the negotiation. The Presidency of the Council will be prepared to inform and exchange views with the European Parliament before and after each meeting of the General Affairs Council. The President of the European Parliament will be invited to be heard at the beginning of meetings of the European Council.

The first sentence reflects Article 218 TFEU, which calls for the EP to be fully and immediately informed throughout negotiations. The second and third sentences go into more detail, and give a bigger role to the EP than usual during EU talks with non-EU countries. As noted already, however, the EP is not a negotiator as such, although its power to give its consent to the final deal (not referred to explicitly here) nevertheless means it is a significant actor. The additional meetings referred to here will be a forum for the EP to influence the negotiations.

There is no reference to the ECJ, which can rule on legal issues concerning draft treaties with non-EU countries pursuant to Article 218 TFEU, at the request of the Commission, Council, EP or a Member State. It is not clear whether the whole of Article 218 necessarily applies to the Brexit treaty process, since Article 50 only refers to some of it. There are also other ways that Brexit legal questions can reach the ECJ: national courts can ask the Court about them, the Commission can sue a Member State (or Member States can sue each other), or Member States or the EU institutions can sue the [other] EU institutions for various aspects of their conduct of the negotiation.

“IN LIGHT OF THE GUIDELINES”: BREXIT AND THE EUROPEAN COUNCIL REVISITED

ORIGINAL PUBLISHED ON EUROPEAN LAW BLOG ON APRIL 4, 2017
By Darren Harvey

 

Introduction

Following the delivery by Sir Tim Barrow of a letter to European Council President Donald Tusk notifying the European Council of the United Kingdom’s intention to withdraw from the EU, the two-year time period within which the UK and EU shall negotiate and conclude a withdrawal agreement has commenced.

According to Article 50(2) TEU, the first step in this process is for the European Council to agree upon a set of guidelines defining the framework for the EU side of the negotiations. A first draft of these guidelines was circulated by European Council President Donald Tusk on Friday 31st March 2017.

The purpose of this post is to follow up from a post written last October on the role of the European Council and the Brexit process.

Amending the Guidelines

As was noted in the previous post, Article 50(2) TEU clearly stipulates that in the absence of guidelines from the European Council, the negotiations between the UK and the EU cannot proceed. It is worth emphasizing from the outset that the draft guidelines shall not be formally adopted by the European Council until it meets on 29th April 2017. One must bear in mind the possibility, therefore, that yesterday’s document may be subject to amendment prior to the adoption of a final version later this month.

What is more, according to the introductory remarks, the European Council may update or amend the guidelines as it sees fit throughout the course of the negotiations. It is unclear whether Article 50(2) TEU gives the power to the European Council to unilaterally amend the guidelines as and when it wishes.

On one interpretation, “in light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement” could allow for a continuous process of revision throughout the process of negotiation and conclusion of the withdrawal agreement. This still leaves open the question of whether the European Council is free to alter the guidelines unilaterally or may only do so upon request from another interested party e.g. the Commission.

The next step in the Article 50 TEU process may be instructive here. Following adoption of guidelines in the European Council, the Commission will then issue a series of recommendations to the Council concerning the finer details of its negotiating mandate and further institutional arrangements. We will therefore have guidelines from the European Council and we will have a more detailed negotiating mandate suggested by the Commission and adopted by the Council. As Dr Camilla Macdonald has recently pointed out, the Commission, in issuing its recommendations to the Council, will be utilizing its technical, legal and policy expertise to fill in all the missing details from the European Council’s guidelines, including firm recommendations on each area under negotiation.

An example of how these Council guidelines may be amended throughout the negotiation process is provided by the EU-Canada Comprehensive and Economic Trade Agreement (CETA), in which the original 2009 guidelines were amended in 2011 by the Council following a recommendation to modify the negotiating directives from the Commission.  It remains to be seen, therefore, whether the European Council will be free to unilaterally update its guidelines throughout the negotiations, particularly when one considers that the Council’s negotiating directives are likely to flesh out the details of those guidelines. Based solely upon the wording of the European Council’s draft last week, it certainly seems to be the case that the heads of state and government of the 27 Member States reserve the right to alter their guidelines as and when they deem it appropriate to do so.

The Scope and Content of the Guidelines

Turning to the guidelines themselves, they address in general terms the basic principles underlying the EU’s negotiating position such as acting with one voice, mitigating uncertainty for citizens and businesses, adhering to the principle of sincere cooperation and ensuring the integrity of the internal market.

In addition, they also address, with varying degrees of detail, all of the following issues: the order in which negotiations on withdrawal and any agreement detailing future UK-EU relations will be negotiated; transitional arrangements; reciprocal guarantees for UK and EU citizens; preventing a legal vacuum liable to disrupt business upon withdrawal; a single financial settlement for legal and budgetary commitments as well as liabilities; the aim of avoiding a hard border on the island of Ireland; the status of the UK’s Sovereign Base Areas in Cyprus; international agreements concluded by the EU during the UK’s membership; the transfer of the seats of EU agencies; cases pending before the Court of Justice and administrative proceedings before the European Commission and EU agencies on the date of withdrawal EU; dispute settlement mechanisms for both the interpretation and application of the withdrawal agreement and any future agreement; institutional arrangements allowing for the adoption of measures to deal with situations arising under the withdrawal agreement; the need to prevent a race to the bottom on fiscal, environmental and employment regulation; Gibraltar and the keeping of ordinary EU business separate from the withdrawal negotiations over the coming two years.

Constraints of space preclude an examination of all these issues in the current post, which is intended only as a first reaction to what I consider to be some of the more intriguing or controversial points raised by the guidelines. The following shall therefore discuss some of the more procedural and institutional aspects of the guidelines, whilst leaving much of the points relating to the substance of any future agreement(s) such as safeguards against fiscal, social and environmental dumping for another time.

How many agreements?

There has been much discussion in recent months on whether the UK’s withdrawal from the EU will require the negotiation and conclusion of one, two or three separate agreements. The uncertainty here stems in large part from the wording of Article 50(2) TEU, which provides that the EU shall negotiate and conclude an agreement with a withdrawing state “setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union.”  The general consensus seemed to be that that there would need to be at least two separate agreements: one to deal with the UK’s withdrawal and another providing for any future trading relationship between the two parties. It was also generally accepted that it would be possible to have some form of transitional agreement so as to prevent all of the UK’s rights and obligations coming to an abrupt end before any agreement covering future UK-EU relations could be agreed.

The draft guidelines have clarified matters to a certain extent here. As they make clear at point 3 under the heading “A Phased Approach to Negotiations”, the negotiations are envisaged as proceeding in two phases.

The first phase shall involve the disentanglement of the UK from the EU and from all the rights and obligations that the United Kingdom derives from commitments undertaken as Member State. In particular, it shall aim at providing clarity and legal certainty to citizens, businesses, stakeholders and international partners on the immediate effects of the UK’s withdrawal.

With regards to the second phase of the negotiations, the guidelines state that it will not be possible to conclude an agreement setting out any future relationship between the UK and the EU until the UK formally leaves the EU and becomes a third country.

However, in light of the abovementioned requirement in Article 50(2) TEU that the parties take account of the framework for their future relations within the withdrawal negotiations, the EU and the remaining 27 Member States have indicated that they are willing to engage in “preliminary and preparatory discussions” with a view to establishing an overall understanding on the framework for future UK-EU relations. These preparatory discussions are subject to the significant caveat at point 4 that they will only commence “As soon as sufficient progress has been made in the first phase towards reaching a satisfactory agreement on the arrangements for an orderly withdrawal.”  Contrary to the views of some members of the British government, therefore, it does not appear possible to begin negotiating a future trade agreement alongside the withdrawal agreement immediately – a point which was re-emphasised by President Tusk in his remarks on Friday: “Once, and only once we have achieved sufficient progress on the withdrawal, can we discuss the framework for our future relationship. Starting parallel talks on all issues at the same time, as suggested by some in the UK, will not happen.”

Consequently, the guidelines have clarified that it will not be possible to set out all of the details governing both the UK’s withdrawal and any future UK-EU relations within a single Article 50 TEU agreement. What is more, whilst it may be possible to discuss future relations, the EU will not be in a position to conclude any agreement to this effect until the UK has formally withdrawn and become a third state. What remains to be seen, however, is whether the scope and content of any agreement governing future UK-EU relations could be agreed upon in principle prior to “Brexit day” on 29th March 2019 and then concluded quickly thereafter.  Whilst the complexities of international trade negotiations dictate that the prospects of getting all this done in less than two years are rather slim, there is nothing in the guidelines which explicitly rule this out. That said, as the guidelines now make clear, the UK is to be treated as a third state for the purposes of any agreement setting out future UK-EU relations. This raises the prospect of such an agreement being a so called “mixed agreement” requiring ratification from  national parliaments.

Finally, with regards to any transitional arrangements, point 5 of the guidelines states that “To the extent necessary and legally possible, the negotiations may also seek to determine transitional arrangements which are in the interest of the Union and, as appropriate, to provide for bridges towards the foreseeable framework for the future relationship.”  The use of the phrase “to the extent legally possible” thus leaves open the question of whether these may be included within the Article 50 TEU withdrawal agreement itself or rather must be situated in a separate agreement?

Depending upon one’s interpretation, there is arguably a nod in the direction of three separate agreements being required (or at least being possible) in point 7 of the guidelines, which states that: “The core principles set out above should apply equally to the negotiations on an orderly withdrawal, to any preliminary and preparatory discussions on the framework for a future relationship, and to any form of transitional arrangements.”

Enforcement and Dispute Settlement

The guidelines insist at several points that some form of mechanism for enforcement and dispute settlement will be required not only for the withdrawal agreement, but also for any transitional arrangement and agreement governing future UK-EU relations. Concerning the withdrawal agreement, point 8 stresses the importance of ensuring that reciprocal guarantees made to UK and EU citizens and their respective family members (for example, the right of EU citizens to remain in the UK) must be enforceable and non-discriminatory.

Moreover, point 16 states that: “The withdrawal agreement should include appropriate dispute settlement mechanisms regarding the application and interpretation of the withdrawal agreement, as well as duly circumscribed institutional arrangements allowing for the adoption of measures necessary to deal with situations not foreseen in the withdrawal agreement. This should be done bearing in mind the Union’s interest to effectively protect its autonomy and its legal order, including the role of the Court of Justice of the European Union.”

This envisages the likelihood of disputes arising in the future from and in relation to the withdrawal agreement itself. For example, should the withdrawal agreement enable EU citizens currently living and working in the UK to continue to do so on the same conditions as UK citizens, will those citizens who feel that their rights as enshrined in that agreement are not being respected be entitled to some form of redress?

Absent any concrete proposals in the guidelines as to how such dispute settlement mechanisms may operate, a number of possibilities present themselves.

One option would be to entrust an existing judicial body such as the CJEU with the task of interpreting the withdrawal agreement and settling disputes. Alternatively, one could envisage the establishment of a new court or tribunal for this specific purpose. A further possibility would be some form of ad hoc arbitral tribunal to hear disputes as and when they arise. From a different perspective, it may be possible for both the UK and EU to agree on a mechanism whereby disputes arising may be settled via diplomatic means and thus not involve any court-type entity.

In addition to the withdrawal agreement, one finds similar references to enforcement and dispute settlement in point 5 with regards to transitional measures, namely “Any such transitional arrangements must be clearly defined, limited in time, and subject to effective enforcement mechanisms. Should a time-limited prolongation of Union acquis be considered, this would require existing Union regulatory, budgetary, supervisory and enforcement instruments and structures to apply.”

The crucial point to note here is that, according to point 5, any transitional arrangement in which a time-limited prolongation of the Union acquis is envisaged would necessarily result in the continued payment by the UK into the EU budget for the duration of that arrangement, along with the continued applicability of EU law in the UK and with it the continued jurisdiction of the Court of Justice.  Whilst this makes sense from the perspective of ensuring a smooth transition from EU membership to a future trading relationship, much of the leave campaign during the referendum was based upon putting an end to much of these budgetary and institutional arrangements.

Finally, point 21 states that any future partnership between the EU and UK must include appropriate enforcement and dispute settlement mechanisms that do not affect the Union’s autonomy, in particular its decision-making procedures.

Irrespective of how these issues are ultimately resolved, it is clear that the negotiations over the withdrawal agreement (and potentially any transitional measures and future trade deal) are now likely to require substantial work on institutional arrangements to account for the settlement of potential disputes arising after the UK has formally left the EU, in addition to the more mainstream issues of assets, liabilities, citizens’ rights, pensions etc.

Gibraltar

As was noted in my previous post, “will the Spanish government seek to place the status of Gibraltar and its future EU membership explicitly on the table at the outset by pushing for its inclusion in the guidelines which shall guide the EU’s side of the negotiations?” The reason why it was foreseeable that issues relating to Gibraltar would be placed on the table at the outset is because once the guidelines have been negotiated and concluded by consensus in the European Council, there exists no means for an individual Member State to veto the withdrawal agreement, with a Qualified Majority in the Council and the consent of the European Parliament sufficient to conclude the deal.

Attention was therefore drawn to the prospect of those Member States with particularly pressing matters of national interest trying to have them included in the negotiation agenda from the beginning by including them in the European Council guidelines. And so it has come to pass, with the guidelines stating in no uncertain terms at point 22 that “After the United Kingdom leaves the Union, no agreement between the EU and the United Kingdom may apply to the territory of Gibraltar without the agreement between the Kingdom of Spain and the United Kingdom.”

This is to be read alongside point 3, which stipulates that on the date of withdrawal, the Treaties will cease to apply to the United Kingdom, to those of its overseas countries and territories currently associated to the Union, and to territories for whose external relations the United Kingdom is responsible.

Interestingly, point 22 does not address the Article 50 TEU withdrawal agreement. Instead, it addresses only any future UK-EU agreement which, depending on its contents, may require a unanimous vote in the Council to conclude, which would give Spain a veto at the end of the process anyway. Nonetheless, inclusion of Gibraltar in the guidelines seems to have caught the UK government off-guard and has been met with consternation in some sections of the UK media, with accusations that Spain is using the pretext of Brexit to take back Gibraltar.

The first point to keep in mind here is that the guidelines are still in draft format. It would therefore be possible for the UK and Spanish governments to try and come to some form of understanding over the coming month and have point 22 removed from the final version of the guidelines. But should this provision make it into the formally adopted guidelines, what would this mean for the UK, EU and Gibraltar moving forward?

It is important to consider the default position here before moving to examine the possible impacts of point 22 of the guidelines.

The default position in public international law is set down in Article 29 of the Vienna Convention on the Law of Treaties (VCLT) which stipulates that unless a different intention appears from the Treaty or is otherwise established, a Treaty is binding upon each party in respect of its entire territory.

In terms of what constitutes the territory of a state, the CJEU has held that, “In the absence, in the Treaty, of a more precise definition of the territory falling within the sovereignty of each Member State, it is for each of the Member States to determine the extent and limits of that territory, in accordance with the rules of international public law.” (C‑111/05, Aktiebolaget NN v Skatteverket, paragraph 54)

In this regard, as the UK Foreign Office’s guidelines on the extension of treaties to overseas territories makes clear, overseas territories such as Gibraltar are not constitutionally part of the United Kingdom. The default position is therefore that, absent any provision dealing with the matter, any Treaty entered into by the UK does not automatically cover the territory of Gibraltar. An example of such a provision in a Treaty is provided in the EU Treaties themselves, with Article 355(3) TFEU providing that the EU Treaties shall apply to the European territories for whose external relations a Member State is responsible. This provision has been held by the CJEU to include Gibraltar (Case C-145/04, Spain v UK, paragraph 19).

Absent such a provision in the Treaty, it nevertheless remains possible for the UK to extend the territorial scope of treaties that it ratifies to include overseas territories, either at the time of ratification or at some later date. When doing so, the UK must consult the government of Gibraltar at the earliest stage possible and allow them a proper length of time to consider the implications of having any treaty extended to them.

Thus, in an “ordinary” state of affairs, any agreement between the UK and EU governing future relations could cover Gibraltar either by an explicit provision in the agreement itself or by a decision of the UK government, having consulted the government of Gibraltar, to extend the Treaty to the territory of Gibraltar.

The problem posed by point 22 of the guidelines from the UK’s perspective, however, is that the EU’s default position seems to be that any future agreement will include an explicit clause excluding its application to the territory of Gibraltar. Alternatively, point 22 could be interpreted as meaning that a provision in the agreement stating that it applies to Gibraltar will only be inserted following agreement between the UK and Spain. If correct, the question then becomes what it is that Spain would seek in return for dropping the prohibition on applicability to Gibraltar or including a provision stipulating that Gibraltar is covered by the agreement.

It is important to keep in mind that the sovereignty of Gibraltar or its coming under Spanish control are not discussed in the guidelines. They only address the applicability of any future UK-EU agreement to the territory of Gibraltar.

Thus, as things currently stand, the UK faces the prospect of having to choose between signing a comprehensive free trade agreement with the EU which will explicitly exclude the territory of Gibraltar from its scope of application, on the one hand, and leaving the EU without any agreement at all governing future relations, on the other.

In order to prevent ever having to make such a choice, UK officials could seek to negotiate with their Spanish counterparts between now and the end of April in a bid to have point 22 dropped from the final version of the negotiating guidelines.

Conclusion

As mandated by Article 50(2) TEU, the European Council has provided a draft set of guidelines which shall direct the EU side of the negotiations with the UK regarding its withdrawal from the EU. Whereas one might have expected the guidelines to be rather abstract in nature and simply set out a list of general principles, the present draft is rather detailed in terms of both its scope and content. This blog post has provided a first reaction to merely a few of the many considerable points set down by the European Council guidelines, which shall undoubtedly be the subject of much discussion and analysis in the coming days and weeks. Turning to the immediate future, the draft guidelines will need to be formally adopted by the European Council at the end of April 2017 and it remains to be seen whether any amendments shall be made to the guidelines between now and then.

The EU as a community of law: Overview of the role of law in the Union

ORIGINAL PUBLISHED ON THE  EPRS (European Parliamentary Research Service) Site

Author: Rafał Mańko

SUMMARY : The term ‘community of law’ was popularised by Walter Hallstein in the 1960s. It emphasises that the Community, and now the European Union, is founded on the ‘rule of law’ principle, and underscores the role of law in the European project, which has been described by political scientists precisely as ‘integration through law’. Modern definitions of the ‘rule of law’ include such elements as the limitation of the powers of public officials by the law, the fact that laws are public, general and apply equally, and finally the presence of an independent, impartial and neutral judiciary. The building blocks of the EU as a community of law have been laid, from the 1950s onwards, in the case law of the Court of Justice.
The ECJ’s case law proclaiming numerous general principles of Community law was inspired by the common legal traditions of the Member States. Over time, many such principles became enshrined in the written sources of EU law, notably the Charter of Fundamental Rights and the Treaties. The ‘life cycle’ of EU law – including its creation, application, interpretation and enforcement – involves various institutional actors. Key roles in the creation of EU law are played by the Commission, Parliament and Council, while the application of EU law on a day-to-day basis is predominantly the task of national courts. Supreme authority to interpret EU law, and to review the compatibility of legislation with the treaties is vested in the ECJ. Individuals – natural and legal persons – enjoy the status of subjects of EU law, and can seek judicial enforcement of their rights based on EU law before national courts. In certain situations they can also seek legal protection directly from the EU courts – the General Court and the Court of Justice.

Introduction

The expression ‘community of law’ (Rechtsgemeinschaft) – was made famous by Walter Hallstein (1901-1982), first President of the European Commission (1958-1967) who in a speech delivered in March 1962 famously remarked that the Community: ” was not created by military power or political pressure, but owes its existence to a constitutive legal act. It also lives in accordance with fixed rules of law and its institutions are subject to judicial review. In place of power and its manipulation, the balance of powers, the striving for hegemony and the play of alliance we have for the first time the rule of law. The European Economic Community is a community of law [Rechtsgemeinschaft] because it serves to realize the idea of law.1″

The expression ‘community of law’ alludes to the notion of a ‘state of law’ (referring inter alia to Rechstaat, état du droit, państwo prawa, stato di diritto) which is the equivalent, in continental legal cultures, of the Anglo-American notion of the ‘rule of law’. Walter Hallstein’s phrase was picked up literally by the European Court of Justice (ECJ) only in 1986, in the case of Les Verts v Parliament (C-294/83). However, the building blocks of the EEC as a community of law were laid by the Court much earlier, starting in the 1950s.

The ‘rule of law’ concept

The origins of the concept of ‘rule of law’ – to which the expression ‘Community of law’ clearly alludes – can be traced back to ancient Greek political philosophy, where it was first formulated by Aristotle.2 Today, the concept of ‘rule of law’ is deemed to be central not only for legal discourse, but also for public discourse in general.3 It is understood as comprising three basic elements:4

  • government limited by law – officials must operate within the framework of existing law, and if they wish to change the law, they must follow the prescribed procedures;
  • formal legality – laws must be laid down in advance (no retroactive laws), they must be general (applicable to everyone in a similar situation), and they must be publicly available (promulgated),
  • rule of law, not men – the task of applying the law must be entrusted to an independent and unbiased judiciary, which acts in a manner free of passion, prejudice and arbitrariness, and is neutral towards the parties; the judiciary also has the power of judicial review over other branches of government, ensuring that the principles of government limited by law and formal legality are duly followed.

Building a community of law: from ECJ case law to the Charter

Principles of a community of law in early ECJ case law

The basic principles of the rule of law, allowing to speak of the EEC as a ‘community of law’, were laid down in early ECJ case law.5 These included, first of all, four substantive principles of the rule of law, including the principle of legality (Case 7/56 Algera); legal certainty (Case 7/56 Algera; Case 42/59 SNUPAT; Case 265/78 Ferwerda); confidence in the stability of a legal situation (Case 23/68 Klomp, para. 12-14); and proportionality (Case 11/70 Internationale Handelsgesellschaft; Case 147/81 Merkur; Case 15/83 Denkavit).

These substantive principles were supplemented by a number of procedural guarantees embodying the rule of law, such as the right to be heard (Case 32/62 Alvis), the right of defence (Case 155/79 AM & S Europe), the right of access to the file (Case 85/76 Hoffmann-La Roche), and the duty of the authority to duly motivate its decision (Case C-42/01 Portugal v Commission).

Codification of the principles of the rule of law in primary law

The principles of the rule of law, stemming from the common traditions of the Member States and adopted as general principles of EU law in ECJ case law, have been, to a great extent, codified in primary law – in particular the Treaty on European Union (TEU) and the Charter of Fundamental Rights (CFR).

In the TEU’s preamble, the Member States confirm their ‘attachment to the principles … of the rule of law’. This idea is reiterated in Article 2 TEU which indicates that the EU ‘is founded on … rule of law’, and that these ‘values are common to the Member States’. The principle of the rule of law is therefore treated as one of the EU’s values which – in light of Article 3(1) TEU – the Union promotes. Furthermore, under Article 21(1) TEU, the rule of law (among other values, such as democracy and human rights) is to guide EU action on the international scene. More specifically, by virtue of Article 21(2)(b) TEU, the EU defines and pursues its external policies and actions, inter alia to ‘consolidate and support democracy, the rule of law, human rights and the principles of international law’. Elements of the rule of law are also codified in the Charter. In particular, Article 41 provides for the right to good administration, and Article 47 provides for the right to an effective remedy and a fair trial.

Integration through law

Political scientists, describing the European integration project, often refer to the notion of ‘integration through law’,6 in order to emphasise the special role of law in the EU. Indeed, the role of law, as a sphere of social life distinct from politics and the economy,7 has been special in European integration. In contrast to projects of (merely) political and (merely) economic integration, the European project has been characterised, from the outset, by the crucial role of law in integrating the Member States. The rules and principles of EU law have contributed to European integration in three principal ways: (1) by replacing divergent rules of national law by the uniform rule of EU regulations; (2) by approximating divergent rules of national law (‘positive harmonisation’ by directives); and (3) by removing legal obstacles on the internal market which infringe the fundamental freedoms (‘negative harmonisation’ by ECJ case law).

EU legal instruments for achieving integration through law

Unification through regulations

Regulations are directly applicable EU instruments (Article 288 TFEU) which, as all EU law, enjoy priority before national legislation. Hence, in areas where the law has been unified by an EU regulation, only EU rules are applicable.

Positive harmonisation through directives

The EU legislature adopts directives which are directed to the Member States (Article 288 TFEU). It is up to national legislators to implement (transpose) directives into national law in order to achieve the results prescribed in each directive. Directives are referred to as ‘two-stage legislation’, because – in contrast to regulations – they are addressed to the Member States and not to private parties. Only in the second stage, when Member States transpose the directive into their national laws, are the rules (of the national implementing measures) addressed to all legal subjects (citizens, companies, etc.).

A minimum harmonisation directive contains semi-mandatory rules directed to the Member States. They need to implement the minimum standard of protection (e.g. of consumers) required by the directive.8 However, they may introduce or maintain a higher level of protection, provided that they do not infringe the fundamental freedoms of the internal market. In contrast, a maximum harmonisation directive must be implemented by the Member State without any modifications, e.g. granting a higher level of protection to consumers. This makes maximum harmonisation directives similar to regulations.

Negative harmonisation through case law

Negative harmonisation consists of the ECJ declaring certain types of national rules as incompatible with the Treaty freedoms, for instance the free movement of goods. In areas not subject to legal unification or harmonisation, negative harmonisation has ensured the proper functioning of the internal market through the mutual recognition of national rules by other Member States. The trend towards negative harmonisation started in the 1970s, inaugurated by such cases as Dasonville (8/74) and Cassis de Dijon (120/78). This line in ECJ case law has been based on the assumption that certain rules imposed by the Member States may actually amount to barriers to the free movement of goods, even if they are not openly discriminatory.

Creation, application, interpretation and enforcement of EU law

Creation and judicial development of EU law

Principle of conferral

Unlike national legislatures, which are, in principle, free to enact legislation in any field they wish (with the exception of areas of exclusive EU competence), EU co-legislators are bound by the will of the Member States, expressed in the Treaties, laying down the precise fields of potential EU legislative activity. This is in line with the principle of conferral (Article 5(2) TEU), according to which the EU has only those competences conferred upon it by the Member States.

Legislative procedure

The task of creating new EU laws falls predominantly on the co-legislators (Parliament and Council) which, however, may act only on the basis of a proposal submitted by the Commission (Article 17 TEU). However, Article 225 TFEU empowers the European Parliament to call upon the Commission to present a legislative proposal (indirect legislative initiative).9 A right of indirect legislative initiative has also been granted to the Council (Article 241 TFEU), as well as to 1 million EU citizens (European Citizens’ Initiative, Article 11(4) TEU). Since the Lisbon Treaty, the Commission must give reasons for any refusal to propose legislation following a request from the Parliament.

Judicial review of EU legislation

The conformity of EU legislation with the Treaties (including the limits of EU competences in line with the principle of conferral) is guaranteed by the ECJ, which performs judicial review of EU legislation in line with Article 263 TFEU (action for annulment). The power to trigger judicial review rests with a Member State, the European Parliament, the Council or the Commission. The Court of Auditors, the European Central Bank and the Committee of the Regions may also trigger an action for annulment in order to protect their prerogatives. Moreover, in certain cases, individuals too may trigger this procedure (see below). An action for annulment pursuant to Article 263 TFEU must be based on one of the following grounds: lack of competence, infringement of an essential procedural requirement, infringement of the Treaties or of any rule of law relating to their application, or misuse of powers. The deadline for filing an action for annulment is two months from the publication of the contested legislative act.

Application of EU law

A specific feature of the EU constitutional set-up is the role of the courts and administrative bodies of the Member States in the application, interpretation and enforcement of EU law. It is the national courts and administrative bodies which have the task of applying EU law on a daily basis. In fact, the ECJ cannot directly resolve disputes before national courts, making national judges actual ‘engines’ of integration through European law.10 National courts and administrative authorities can apply EU law either directly, if they base their decision on an act of EU law, or indirectly, if the national judge or official acts on the basis of a provision of national law which implements a provision of EU law. The first case – direct application of EU law – occurs whenever national judges and officials apply EU regulations or, which happens somewhat less frequently, the EU Treaties. The second case concerns the application of national rules which implement EU directives.

Duty to respect the EU Charter of Fundamental Rights

Whenever national judges or administrative bodies act within the sphere of EU law, they have the duty to take into consideration the EU Charter of Fundamental Rights. This follows explicitly from Article 51 of the Charter which provides that it is ‘addressed … to the Member States only when they are implementing Union law’. Whenever they do, they must ‘respect the rights, observe the principles and promote the application thereof in accordance with their respective powers’.

Procedural autonomy and principles of equivalence and effectiveness National courts and administrative bodies enjoy, in principle, ‘procedural autonomy’ when applying EU law. This means that unless there are EU rules specifically prescribing how the administrative or judicial proceedings should be conducted, the Member States are free to lay down their procedural rules. However, the most important limitation to the Member States’ procedural autonomy is to be found in the principles of equivalence and effectiveness, first proclaimed by the ECJ in Case 33/76 Rewe-Zentraflinanz. Under the principle of equivalence, Member States must treat rights granted under EU law on an equal footing to rights granted under domestic law. Under the principle of effectiveness, the Member States must ensure that the rights granted under EU law are effectively enforced.11

Application of EU law by the Commission in individual cases

In certain areas of the law, such as antitrust, state aid, public procurement for the EU institutions, as well as funding from the EU budget administered by the Commission, the latter takes individual decisions, thereby applying EU law in individual cases. EU agencies and bodies are also sometimes empowered to take individual decisions. For instance, the EU Intellectual Property Office (formerly the Office for Harmonization in the Internal Market, OHIM) in Alicante delivers decisions in individual cases regarding trademarks. All individual decisions taken by the Commission or other EU institutions, bodies or agencies are subject to judicial review (action for annulment – Article 263 TFEU). Cases are heard by the General Court, and there is a possibility of appeal to the Court of Justice.

In 2015,12 the General Court received 382 direct actions (mainly for annulment), of which 342 were brought by individuals. In the same period, it also received 342 cases concerning intellectual and industrial property – appeals from OHIM.

Interpretation and judicial development of EU law

Preliminary reference procedure

Whilst the day-to-day interpretation, application and enforcement of EU law is the task of national judicial and administrative authorities, the latter may harbour doubts as to the interpretation of a given provision of EU law. If such a doubt arises before a court or tribunal, it may refer the issue to the Court of Justice. This is possible only if the question regarding the interpretation of EU law or the conformity of an EU act of secondary law (directive, regulation, decision) with EU primary law (Treaties, Charter) is necessary for that court or tribunal to give a decision. Therefore, general and abstract questions (even if practically relevant – but not in a concrete case), as well as purely hypothetical questions are not admissible.

Once the ECJ gives its ruling, it is binding on the national court which submitted the question. However, according to the case law of the ECJ, the interpretation of EU law given by that Court in the preliminary reference procedure is binding not only in the dispute in which the question was raised (inter partes effect), but it also has general binding force for all judicial and administrative authorities in the Member States (erga omnes effect) (Cases 283/81 CILFIT and C-10/97 IN.CO.GE.). As a result, national judges – whenever they apply EU law directly or indirectly – must follow earlier interpretations of that law given by the ECJ.

In 2015,13 the ECJ decided on 404 preliminary references. At the same time, 436 new preliminary references were submitted, the largest numbers originating from Germany (79), Italy (47), the Netherlands (40), Spain (36) and Belgium (32). The topics of preliminary references decided in 2015 were concerned mainly with free movement and internal market law (74 cases), taxation (55 cases), intellectual property (51 cases), competition and state aid (49 cases), as well as the area of freedom, security and justice (also 49 cases).

Methods of interpretation of EU law

When interpreting EU law, the CJEU pays particular attention to the aim and purpose of EU law (teleological interpretation), rather than focusing exclusively on the wording of the provisions (linguistic interpretation).14 This is explained by numerous factors, in particular the open-ended and policy-oriented rules of the EU Treaties, as well as by EU legal multilingualism.15 Under the latter principle, all EU law is equally authentic in all language versions. Hence, the Court cannot rely on the wording of a single version, as a national court can, in order to give an interpretation of the legal provision under consideration. Therefore, in order to decode the meaning of a legal rule, the Court analyses it especially in the light of its purpose (teleological interpretation) as well as its context (systemic interpretation).

Harmonious interpretation by national courts

The interpretation of EU law provided by the ECJ is binding on national courts. This applies not only to situations when a given national court referred a particular question under the preliminary ruling procedure, but to all situations when a national court applies EU law directly (e.g. when it applies an EU regulation) or indirectly (e.g. when it applies national rules implementing an EU directive). A national court, when interpreting national rules implementing EU law, must take into account the EU directive which was implemented. This is known as the principle of ‘harmonious interpretation’ and has been proclaimed in ECJ case law (Cases 14/83 Von Kolson, C-106/89 Marleasing; C-397/01 Pfeiffer and C-555/07 Kücükdeveci). This also extends to following guidance given by the ECJ in earlier case law (see above).

Judicial development of EU law by the ECJ

Apart from being changed by legislation, EU law is also developed (richterliche Rechtsfortbildung) through the case law of the ECJ. As early as 1955, the Court, noting that a certain issue was not regulated explicitly in the Treaties, pointed out that ‘unless [it] is to deny justice it is therefore obliged to solve the problem by reference to the rules acknowledged by the legislation, the learned writing and the case law of the member countries’ (Case 7/56 Algera, page 55). It is worth noting that some of the fundamental principles of EU law, such as supremacy and direct effect, were proclaimed by the ECJ, without having been spelt out previously in the Treaties.16 This allows describing the role of the ECJ not only as that of purely applying and interpreting EU law, but also contributing to its development, especially through the formulation of general principles of EU law.17 Some authors speak in this context of ‘de facto precedent’ at the ECJ.18

Enforcement of EU law vis-à-vis the Member States

Whilst EU law is being applied, on a daily basis, by national judges adjudicating disputes which fall into the scope of EU law, they do not necessarily have the means (legal and political) to ensure that EU law is correctly implemented and respected by the authorities of the Member States. To this end, appropriate powers have been vested in the Commission as ‘guardian of the treaties’, and in the ECJ as the court competent to decide disputes regarding violations of EU law by the Member States. According to Article 17 TFEU, the Commission ‘ensure[s] the application of the Treaties and of the measures adopted by the institutions pursuant to them’, and ‘ oversees the application’ of EU law.

Infringement proceedings

If the Commission considers that a Member State has failed to fulfil its obligations following from the Treaties, it may take legal steps against it. According to Article 258 TFEU, the first step the Commission must take in such a situation is to deliver a reasoned opinion on the matter after giving the Member State concerned the opportunity to submit its observations (by letter of formal notice). Only if that Member State does not comply with the opinion within the period laid down by the Commission, may the Commission launch a legal action against that state before the ECJ.

Main areas concerned

Recently, the Commission’s focus in ensuring the proper implementation and application of EU law at national level has been on the following areas:

In 2015, the Commission sent 742 letters of formal notice to Member States, and 248 reasoned opinions.19 The largest numbers of reasoned opinions were addressed to Poland (21), Spain (19), Greece (16) and Italy, France and Luxembourg (13 each). At the other end of the spectrum, only one was sent to Croatia, two to Latvia and four each to Denmark and Slovakia. As of 31 December 2015, a total of 1 368 infringement cases remained open, with the largest number of cases pending against Italy (89), Germany (89), Spain (83), Greece (82), France (80) and Poland (78). At the same time, below 30 cases were on-going against Croatia (21), Denmark (23), Malta (24), Estonia (26) and Latvia (28).

Article 260(1) TFEU provides that if the ECJ finds that the defendant Member State indeed failed to fulfil its obligations under the Treaties, that state must ‘take the necessary measures to comply with the judgment’.

In 2015, the ECJ gave 25 judgments in infringement cases. The Commission won in 82 % of them. Poland lost in four cases; Belgium, Bulgaria, France, Germany, Greece and Luxembourg lost in two cases each, and the UK lost one case. The Commission lost in two cases brought against Slovakia, and one brought against the UK.

However, not all Member States comply with a judgment declaring its infringement, and therefore Article 260(2) TFEU provides that the Commission – if it believes that the judgment has not been complied with – may bring the case back to the ECJ. However, before doing so, it must give the Member State the opportunity to submit its observations. In an action under Article 260(2) TFEU, the Commission specifies the amount of the lump sum or penalty payment to be paid by the Member State concerned which it considers appropriate in the circumstances. If the Commission’s action is successful, the ECJ may impose such a lump sum or penalty payment, although it is not obligatory.

At the end of 2015, 85 ‘persistent’ infringement proceedings were open against Member States which, in the Commission’s view, did not comply with a judgment rendered under Article 258 TFEU. The largest number of cases were open against Greece (10), Poland (8) and Spain (7), and were related to environment (35), transport (12), taxation (9) and health and consumer protection (7). In 2015, the Court delivered three judgments against Member States persistently infringing EU law, and imposed penalty payments on two countries – Italy and Greece. In the case of C-653/13 Commission v Italy (concerning waste management in the Campania region) the ECJ imposed a lump-sum payment of €20 million and a penalty of €120 000 for each day of non-compliance with the original judgment. In the case of C-367/14 Commission v Italy (concerning state aid in Venice and Chioggia) the ECJ imposed s lump-sum payment of €30 million and a periodic penalty: €12 million for each half year of non-compliance with the original judgment under Article 258 TFEU). In case C-167/14 Commission v Greece (concerning treatment of urban waste water) the lump sum was set at €10 million and the periodic penalty at €3.64 million for each half year of non-compliance with the original judgment.

Rule of law procedure preventive mechanism20

The ‘rule of law procedure which can be launched against a Member State is in fact concerned with a ‘breach of EU values’ by an EU country. Whilst the notion of ‘values’ is rather vague, it is nonetheless the case that Article 2 TEU clearly includes the ‘rule of law’ amongst the ‘values … common to the Member States’. Hence, a breach of the rule of law in a Member State can lead to the triggering of the procedure established in Article 7 TEU. The procedure consists of two distinct mechanisms: the ‘preventive mechanism’, established by the Nice Treaty, and the ‘sanctions mechanism’, established by the Amsterdam Treaty. Both mechanisms are independent of each other, meaning that the sanctions mechanism can be triggered without going through the preventive mechanism.

Under the ‘preventive mechanism’ (Article 7(1) TEU), the Council may determine that there is a clear risk of a serious breach of the EU values by a Member State. The procedure can be initiated by the Parliament, Commission or one third of EU Member States. The Council issues a decision by a majority of four fifths of its members after having received Parliament’s consent which, in turn, requires a two-thirds majority of the votes cast, representing an absolute majority of all Members (Article 354(4) TFEU). The Member State incriminated does not vote in the Council.

Rule of law procedure sanctions mechanism

The sanctions mechanism (Article 7(2)-(3) TEU) can be triggered by the Commission or one third of the Member States, but not by the Parliament. In the first phase, the European Council (Heads of State or Government) determines by unanimity and after obtaining Parliament’s consent (by a two-thirds majority of the votes cast, and an absolute majority of Members) the existence of a serious and persistent breach of EU values by a Member State. The incriminated Member State does not vote in the European Council.

In June 2016, the Commission has issued a rule of law recommendation to Poland in June 2016. This document followed an orientation debate held by the College of Commissioners in January 2016, during which the Commission decided to examine the situation under the Rule of Law Framework, mandating First Vice-President Timmermans to enter into a dialogue with the Polish authorities. In its recommendation, the Commission expressed the opinion that there is a ‘systemic threat’ to the rule of law in Poland in connection with the dispute concerning the composition of Poland’s constitutional court and the constitutionality of its legal framework. The Polish government does not agree with the Commission’s recommendation, describing it as ‘groundless’ and ‘one-sided’.

Citizens in a community of law

A community of states and citizens

Whilst the original text of the Treaties did not provide explicitly for individual rights,21 the ECJ’s landmark decisions of the early 1960s (Case 26/62 Van Gend & Loos and Case 6/64 Costa v E.N.E.L.) proclaimed that the Community is not only a legal order between states (as a classic international organisation), but also a community of states and citizens. Therefore, the subjects of EU law are not only its Member States, but also private individuals – natural and legal persons, both under private and public law. Hence, individuals can rely directly on certain rights provided for in EU law before national courts, which the latter need to protect (direct effect of EU law), even in case of divergent rules of national law which need to be set aside (supremacy of EU law). The Member States confirmed the special status of individuals in the EU legal order by introducing, in the Treaty of Maastricht (1992), the concept of EU citizenship conceived as a legal bond linking the nationals of EU Member States with the Union as such.

Fundamental rights as general principles of EU law and their recognition in the charter

The legal status of individuals under EU law was further strengthened by the introduction by the ECJ of fundamental rights as general principles of EU law. In Case 29/69 Stauder v Ulm, the ECJ mentioned that ‘fundamental human rights’ are not only ‘enshrined in the general principles of Community law’ but also ‘protected by the Court’. In later case law, the ECJ recognised such fundamental rights22 as the right to dignity and personal integrity (Case C-377/98 Netherlands v Parliament and Council), the right to freedom of expression (Case C-288/89 Gouda), the right to equality before the law (Case C-15/95 EARL; C-292/97 Karlsson), and the right to good administration (Case 222/86 Heylens; Case 374/87 Orkem; Case C-255/90 P Burban). The introduction of fundamental rights back in the 1960s is seen as a consequence of the earlier proclamation of the principles of direct effect and supremacy, which would have been questioned by national courts if they were not backed by fundamental rights at EU level.23 A further step in making EU citizens subjects of Union law was the entry into force, on 1 December 2009, of the Charter of Fundamental Rights, as a legally binding instrument of primary EU law. As judge Marek Safjan pointed out, the rules of the Charter, frequently referred to in ECJ case law, ‘influence the process of interpretation, of determination of the very content of particular norms [of EU law], their extent and legal consequences’.24

Protection of individual rights under EU law before national courts

Vertical direct effect of Treaty provisions

The possibility for individuals to invoke Treaty provisions vis-à-vis national authorities (vertical direct effect of the Treaties) was already allowed by the ECJ in Van Gend & Loos with regard to Article 12 of the EEC Treaty, introducing a standstill on tariffs in intra-Community trade. Later ECJ case law extended direct effect to further Treaty articles.

Treaty provisions having vertical direct effect25

Article 21(1) TFEU (free movement of citizens); Article 28 TFEU (customs union); Articles 34-35 TFEU (prohibition of quantitative restrictions in intra-EU trade); Article 37(1) TFEU (state commercial monopolies); Article 45 TFEU (free movement of workers); Article 49 TFEU (freedom of establishment); Article 56-57 TFEU (free movement of services); Article 63(1) TFEU (free movement of capital and payments); Article 101(1)-(2) TFEU (antitrust rules); Article 102 TFEU (prohibition of abuse of dominant market position); Article 108(3) TFEU (state aid); Article 110 TFEU (non-discrimination in tax matters); Article 157 TFEU (prohibition of gender discrimination).

Vertical and horizontal direct effect of regulations

Regulations – which are binding directly and in their entirety – have both vertical and horizontal direct effect with regard to individuals. However, in order to be directly applicable in an individual dispute, the rule in question must be clear, precise and leave no discretion to the Member States (Case 9/73 Schlüter).

Vertical direct effect of directives

Directives are predominantly addressed to the Member States (Article 288 TFEU) which need to implement them. However, under certain conditions they can exert vertical direct effect (vis-à-vis national authorities). In Case C-91/92 Dori the ECJ ruled that if a directive has not been implemented in a timely fashion, individuals who would have enjoyed rights under the national implementing provisions may claim damages from the state which failed to implement the directive. However, the Court excluded the possibility of horizontal direct effect, i.e. the possibility of enforcing rights envisaged in an unimplemented directive vis-à-vis another individual (Dori, para. 30). Detailed conditions of state liability vis-à-vis individuals for breach of EU law were laid down in the 1996 judgment, Brasserie du Pecheur (C-46/93).

Horizontal direct effect of Treaty provisions

Whilst the direct effect of Treaty provisions is mainly vertical (vis-à-vis the Member States), some Treaty provisions are also capable of being enforced in disputes between two individuals. This is the case, for instance, with Article 49 TFEU on freedom of establishment (Case C-438/05 Viking) and Article 102 TFEU prohibiting agreements in restraint of competition (Case C-453/09 Courage).

Standing of individuals before EU courts

Action for annulment of an EU act

Article 263(4) TFEU provides that any natural or legal person may bring an action for annulment of an EU act intended to produce legal effects, if that act is: (1) addressed to that person; (2) of direct and individual concern to that person; and (3) it is a regulatory act which is of direct concern to that person and does not need to be further implemented. The action may be based on one of the following grounds: (1) lack of competence; (2) infringement of an essential procedural requirement; (3) infringement of the Treaties; (4) infringement of any rule of law relating to the application of the Treaties; or (5) misuse of powers. The action for annulment must be brought within two months of the day when the act in question was published or notified. If it was neither published nor notified, the deadline starts to run from the day on which the individual learned about the act.

Action for failure to act

Article 265 TFEU provides that in case the European Parliament, the European Council, the Council of the EU, the Commission or the European Central Bank fails to act, in infringement of the Treaties, the Member States and the other institutions of the Union may bring an action before the Court of Justice of the European Union to have the infringement established. This Article shall apply, under the same conditions, to bodies, offices and agencies of the Union which fail to act.

Action for damages against the EU

Article 340 TFEU grants individuals the right to bring an action for damages against the EU institutions.26 According to ECJ case law (C-352/98 P Bergaderm), the EU incurs liability only if there is a ‘sufficiently serious’ breach of EU law, i.e. if the institution concerned ‘manifestly and gravely disregarded the limits on its discretion’. If the institution had no discretion, but still acted illegally, then ‘the mere infringement of Community law may be sufficient to establish the existence of a sufficiently serious breach’. Apart from a sufficiently serious breach, the individual in question (usually a company) needs to prove loss and causal link between that loss and the illegal action or forbearance.

Main references

Thomas von Danwitz, ‘The Rule of Law in the Recent Jurisprudence of the ECJ’, Fordham International Law Journal 37.5 (2014): 1311-1377
E.M. Poptcheva, Member States and the rule of law: Dealing with a breach of EU values, EPRS Briefing, PE 554.167 (2015).Endnotes
1 W. Hallstein, Europäische Reden (1979), pp. 343-344, translation after: T. von Danwitz, ‘The Rule of Law in the Recent
Jurisprudence of the ECJ’
, Fordham International Law Journal 37.5 (2014): 1311-1377, p. 1312-1313.
2 R. Stein, ‘Rule of Law: What Does it Mean?’, Minnesota Journal of International Law 18.2 (2009): 293-303, 297-298;
J. Podczaszy, ‘Koncepcja rządów prawa a jej stosowanie w Polsce’, in: Rządy prawa i europejska kultura prawna, ed.
A. Bator et al. (Prawnicza i Ekonomiczna Biblioteka Cyfrowa, 2014), pp. 29-30.
3 T. Pietrzykowski, Ujarzmianie Lewiatana: Szkice o idei rządów prawa (Wyd. Uniw. Śląskiego, 2014), p. 7.
4 See e.g. B.Z. Tamanaha, ‘The History and elements of the Rule of Law’, Singapore Journal of Legal Studies (2012): 232-
247, p. 236. See also: R. Stein, ‘Rule of Law…’, p. 300-302.
5 T. von Danwitz, ‘The Rule of Law…’, pp. 1314-1316.
6 A. Vauchez, ‘Integration-through-Law: Contribution to a Socio-history of EU Political Common Sense’, EUI Working
Papers RSCAS 2008/10, p. 1.
7 Sociologists typically differentiate law from other social systems (also known as ‘fields’ or ‘institutional worlds’), such
as, notably, politics and the economy. See e.g. P. Berger, P. & Luckmann, The Social Construction of Reality: A Treatise in the Sociology of Knowledge (Penguin 1991); P. Bourdieu, ‘The Force of Law: Toward a Sociology of the Juridical Field’, Hastings Law Journal 38 (1987): 805-853; N. Luhmann, Introduction to Systems Theory (Polity Press 2002).
8 R. Mańko, Contract law and the Digital Single Market, EPRS in-depth analysis, PE 568.322 (2015), pp. 19-20.
9 E.M. Poptcheva, Parliament’s legislative initiative, EP Library Briefing (2013).
10 J. Neimanis, ‘The Role of a Judge in European Integration’, in European Integration and Baltic Sea Region: Diversity
and Perspectives
, ed. I. Muižnieks et al. (University of Latvia Press 2011), p. 175.
11 D. Šulmane, ‘The Principle of Effectiveness – The Guarantee of Rule of Law in Europe?’, in European Integration and
Baltic Sea Region: Diversity and Perspectives
, ed. I. Muižnieks et al. (University of Latvia Press, 2011), pp. 238-239. Cfr.
M. Bobek, ‘Why there is no principle of “procedural autonomy” of the Member States’, in The ECJ and the Autonomy
of the Member States (Intersentia 2011).
12 ECJ, Annual Report for 2015 (2016).
13 Ibid.
14  A. Arnull, The European Union and Its Court of Justice (2nd ed., OUP 2006), p. 612; T. Schilling, ‘Beyond
Multilingualism: On Different Approaches to the Handling of Diverging Language Versions of a Community Law’,
European Law Journal 16.1 (2010): 47-66, p. 60; J. Barcik, A. Wentkowska, Prawo Unii Europejskiej (Beck 2014), p. 313.
15 R. Mańko, Legal aspects of EU multilingualism, EPRS briefing, PE 595.914 (2017), pp. 7-8.
16 See e.g. K. Alter, Establishing the Supremacy of EU Law (OUP 2013).
17 A. Sulikowski, ‘Tworzenie prawa przez Europejski Trybunał Sprawiedliwości. Wybrane problemy’, in Teoria prawa
europejskiego, ed. J. Kaczor (WUWr 2005), p. 221-232; A. Arnull, The European Union and its Court of Justice (OUP
2006), p. 626–628;
18  J. Helios, ‘Sędziokracja w Unii Europejskiej? Uwagi w kontekście działalności interpretacyjnej Trybunału
Sprawiedliwości Unii Europejskiej’ in Rządy prawa…, pp. 193-194; P. Marcisz, Koncepcja tworzenia prawa przez
Trybunał Sprawiedliwości Unii Europejskiej (LEX 2015).
19 European Commission, Monitoring the application of European Union law – 2015 Annual Report, COM(2016) 463
final, p. 22.
20 This and the subsequent section are based on: E.M. Poptcheva, Member States and the rule of law: Dealing with a
breach of EU values
, EPRS Briefing, PE 554.167 (2015).
21 K. Alter, Establishing the Supremacy of European Union Law: The Making of an International Rule of Law in Europe
(OUP 2002), p. 37; A. Stone Sweet, ‘The Juridical Coup dEtat and the Problem of Authority’, German Law Journal 8
(2007): 915-928, p. 924; G. Conway, The Limits of Legal Reasoning of the European Court of Justice (CUP 2012), p. 29.
22 F. Ferraro, J. Carmona, Fundamental Rights in the European Union: The role of the Charter after the Lisbon Treaty,
EPRS in-depth analysis, PE 554.168 (2015), pp. 4-6.
23 T. Jurczyk, ‘Zasady ogólne prawa Unii Europejskiej a Karta Praw Podstawowych’, in Rządy prawa…, p. 199.
24 M. Safjan, ‘Fields of application of the Charter of Fundamental Rights and constitutional dialogues in the European
Union’
, EUI LAW – Centre for Judicial Cooperation working paper 2014/02, p. 2.
25 M.M. Kenig-Witkowska (ed.), Prawo instytucjonalne Unii Europejskiej (Beck 2015), pp. 308-309.
26 D. Chalmers et al., European Union Law (CUP 2014), pp. 458-464.

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The Great (UK) Repeal Bill and the Charter of Fundamental Rights – not a promising start

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One of the messages that the UK government has repeated since the decision of the British people to leave the EU, is that the withdrawal will not entail a loss of any right, particularly of social rights. This was (and is) an important part of the message, considering the high turnout of labour voters that voted for Brexit.

Yesterday the Government published an insightful White Paper on the upcoming Great Repeal Bill, which will incorporate most of EU Law into UK Law once Brexit takes place, in order to provide stability and legal certainty to citizens and undertakings currently living and working in the UK. In Chapter 2, the White Paper makes a reference to the hundreds of thousands of EU acts that will be incorporated and stresses the importance of providing stability in the legal framework once Brexit happens. EU Law will carry on being applicable, but only as UK Law, and reforms will be introduced into this “repatriated EU Law” from then onwards by both Parliament and Government.

Therefore, on the day Brexit happens EU Law will be incorporated into the UK legal system, including the entirety of the Court of Justice’s case-law. This is a huge digestion of rules and judicial rulings, unprecedented in the way and speed in which it will take place.

However, there is a piece of EU Law that will not be incorporated into UK Law. This is no ordinary or irrelevant piece. It is the Charter of Fundamental Rights of the European Union. It is another revealing sign of the impact that Brexit will have in the UK and, above all, for UK citizens and their rights.

The Government’s White Paper justifies the decision to exclude the Charter from the Great Repeal Bill with an argument so simple that it is, in fact, incorrect. I very much doubt that the UK Government incurred in a clerical error when drafting the text, so I assume that the justification is simply the best effort they could do. In the Government’s own words, “the Charter was not designed to create any new rights or alter the circumstances in which individuals could rely on fundamental rights to challenge the actions of the EU Institutions or member states in relation to EU Law.” The document carries on and claims that “the Charter was intended to make the rights that already existed in EU law more visible by bringing them together in a single document”.

I might be missing something, but the Charter, besides codifying some fundamental rights already recognized in the case-law of the Court of Justice, introduced many new rights and principles of enormous relevance and inexistent under EU Law until the entry into force of the Charter in 2009.

Thanks to the Charter, EU Law recognizes the prohibition of human cloning as part of the fundamental right to physical integrity (article 2.2.d). There is nothing in EU secondary law on schools, but the Charter enshrines the freedom to found educational establishments (article 14.3). And there is a very important right conferred on nationals of non-EU Member States that are authorized to work in the EU: the right to working conditions equivalent to those of citizens of the Union (article 15.3).

In an aging society in which we will live longer than any other previous generation, the Charter recognizes the rights of the elderly “to lead a life of dignity and independence and to participate in social and cultural life”. Many of the elderly in Britain voted for Brexit. This fundamental right has been deprived from them.

The effect is even more brutal when it comes to vulnerable groups, as is the case of persons with disabilities. Article 26 of the Charter recognizes the right of persons with disabilities “to benefit from measures designed to ensure their independence, social and occupational integration and participation in the life of the community”. This right under the Charter will be gone after Brexit.

The Government’s document is even more striking when it adds that “the removal of the Charter from UK law will not affect the substantive rights that individuals already benefit from in the UK”. This assertion is made on the assumption that EU secondary law suffices to keep all the rights untouched. But this claim is wrong, and it can be easily proved with an example.

In Kušionová, the Court of Justice was faced with an unfair term in a consumer credit contract, in which the guaranteed asset was the consumer’s home. When she faced the risk of an eviction and loss of her home, Mrs. Kušionová argued that the fundamental right to accommodation, as recognized in article 7 of the Charter, protected the consumer from procedures of enforcement that would entail her eviction, the auction of the property and, as a result, the loss of her home. The Court of Justice agreed and ruled that the enforcement could not carry on as a result of the Directive 93/13 (which says nothing about extrajudicial enforcements), as interpreted in light of the Charter. By relying on the Charter, the Court of Justice interpreted Directive 93/13 in a way that created a new provision, a rule of judicial creation, coherent with the Directive 93/13, but not included by the legislature in the articles of the legal text.

With the Great Repeal Bill, Mrs. Kušionová’s case would still apply in the UK because Directive 93/13 and the UK implementing legislation will be interpreted in light of the Court of Justice’s pre-Brexit case-law. And the judgment is Kušionová was rendered in 2014, so it will remain as part of UK law.

However, this will not be the case when it comes to interpret the 2014 Mortgage Credit Directive, which has not been interpreted yet by the Court of Justice (and will not be interpreted before Brexit). This Directive will be incorporated into UK Law as a result of the Great Repeal Bill, but it will be introduced with no case-law of the Court of Justice attached to it. Therefore, the right to protect the consumer’s home will be ensured when the substantial applicable rules are those under Directive 93/13 (Kušionová), but the consumer will be left all alone, in the hands of internal UK Law, when the same risk appears but the consumer can only rely on the Mortgage Credit Directive.

It is true that the Charter can only apply in Member States when there is another rule of EU Law at stake. But all EU lawyers know that the Charter is not only an interpretative tool for the application of EU Laws, but also a source of creation of new jurisprudential rules, closely attached to the EU rules governing the case. Kušionová is a good example of how the system works. It is also a good example of how unfair and regressive the Great Repeal Bill will be for millions of right-holders in the UK, particularly for the most vulnerable communities and individuals.

As every day goes by, we understand better what “take back control” means. In the area of fundamental rights, it means a lot. And the prospects are not very good for right-holders, despite the promises of the happy Brexiteers to keep rights untouched.

 

(*)  PROFESSOR AT THE UNIVERSITY COMPLUTENSE OF MADRID  Daniel Sarmiento is Professor of EU and Administrative Law at the Universidad Complutense of Madrid. Between 2007 and 2015 he was a legal secretary at the European Court of Justice. He currently devotes his research interests to European constitutional affairs, procedural law and fundamental rights. He is also a practising lawyer at Uría Menéndez, Madrid, where he counsels in EU Law.

Legally sophisticated authoritarians: the Hungarian Lex CEU

ORIGINAL PUBLISHED ON VERFASSUNGSBLOG

 (*)

On 28 March the Hungarian government tabled an amendment to the Act on National Higher Education in Parliament. Even though the draft is formulated in normative terms, the only targeted institution is the Central European University (CEU), founded by George Soros, one of the main enemies of the Viktor Orbán’s ‘illiberal state’. Michael Ignatieff, former professor of Harvard University’s John F. Kennedy School of Government, current president and rector of CEU assessed the draft as a discriminatory political vandalism, violating Hungarian academic freedom. Here I do not want to deal with the clear ideological and political motivations of the action of the current Hungarian Prime Minister, a that time liberal recipient of Soros’s financial support during his studies in Oxford three decades ago.

I want rather focus on the behavior of a contemporary authoritarian (or dictator, as Jean-Claude Juncker, the President of the European Commission once greeted him). As William Dobson argues is his book, The Dictator’s Learning Curve, “today’s dictators and authoritarians are far more sophisticated, savvy, and nimble that they once were”. They understand, as Orbán does, that in a globalized world the more brutal forms of intimidation are best replaced with more subtle forms of coercion. Therefore, they work in a more ambiguous spectrum that exists between democracy and authoritarianism, and from a distance, many of them look almost democratic, as the leader of Hungary, a Member State of the EU, does. Their constitutions, as the Fundamental Law of Hungary, often provide for a division of powers among the executive, the legislature, and the judiciary – at least on paper. They are also not particularly fearful of international organizations. Even a threat of foreign or international intervention and criticism can be a useful foil for stirring up nationalist passions and encouraging people to rally around the regime, as for Orbán, who claims to protect Hungary to became a colony of the EU. If necessary, they use the most refined European discourses, for instance about national constitutional identity, as the Orbán government did in order not to take part in any European efforts to solve the refugee and migration crisis. And as opposed to previous dictators of the old good times of totalitarian regimes, who just closed up organizations they did not like, without any scruples, today’s authoritarians take advantage of formalistic legal arguments against their enemies. The Russian authorities in the fall of 2016 revoked the educational license of the European University in St. Petersburg following unscheduled checks in the buildings referring to several violations against regulations, such as lack of fitness room and an information stand against alcoholism.

Similarly, the new draft law of the Hungarian government also uses legal tricks to force CEU to cease operation in Budapest. Such a clearly unacceptable requirement would be to open an additional campus in the State of New York. This wasn’t a condition in 1995, when CEU, holding a charter from the New York State Education Department, received its license to operate in Hungary from the Ministry of Culture and Education. Like other international universities chartered in the US, CEU does not maintain any academic or other programs in the United States. Moreover, in 2004 Hungary promulgated a special law on the establishment of Közép-európai Egyetem (KEE) as a Hungarian university, which was accredited by the Hungarian Accreditation Committee together with ten graduate and doctoral programs of the CEU as programs of KEE. Ever since the university has a dual legal entity, as KEE and CEU, but it is one university with only one campus, one academic staff, senate and rector, the latter appointed by the President of Hungary. According to the new law Hungarian universities could only deliver programs of European universities and not of countries from the OECD (including the US), therefore KEE, the Hungarian university could no longer deliver its single set program with CEU, which was allowed under the current law. 

The amendment if passed would make it impossible for CEU to continue its research and teaching activities, including its highly ranked comparative constitutional law LLM and SJD programs. This violates scientific freedom in Hungary, which on paper is still part of the Hungarian Fundamental Law. In the absence of an independent constitutional court in Hungary, the only domestic ‘remedy’ which one can imagine in an authoritarian regime is that the ‘wise leader’ graciously withdraws from his plan.

(*) Halmai, Gábor: Legally sophisticated authoritarians: the Hungarian Lex CEU, VerfBlog, 2017/3/31, http://verfassungsblog.de/legally-sophisticated-authoritarians-the-hungarian-lex-ceu/, DOI: https://dx.doi.org/10.17176/20170401-102552.

The (UK) White Paper on the Great Repeal Bill: Invasion of the Parliamentary Control Snatchers

ORIGINAL PUBLISHED ON EU LAW ANALYSIS

Professor Steve Peers

Yesterday’s White Paper for the forthcoming Great Repeal Bill outlines the key elements of the domestic law aspects of the process of the UK leaving the EU. It indicates broadly how the future proposal for a Bill will do two main things: (a) convert existing EU law applied in the UK to UK law including, in some cases, law of the devolved bodies in Scotland, Wales and Northern Ireland); and (b) provide for a process of amending ex-EU law in future.

While the White Paper has thought some issues through in detail, there are some key points on which it is either vague or unconvincing (or both). In particular, it contains no real detail or substantiated argument on the most important issue: the power of the executive to amend laws without an Act of Parliament.

Converting EU law

The White Paper confirms that the UK will continue to apply EU law until Brexit Day – which will be March 29, 2019, unless (a) the EU/UK withdrawal agreement specifies otherwise, or (b) the EU and UK agree to extend this date, or (c) the UK rescinds its notification to withdraw from the EU (if that is legally possible). It also confirms the intention to remove the European Communities Act – the main Act of Parliament that gives effect to EU membership in UK law – as of that date.

But it seeks to retain in force the EU rules which apply in the UK as of that date, subject to amendments (as discussed below).  The EU rules in question are directly-applicable Regulations and EU Treaty provisions, as well as Directives which were already transposed into UK law by using the European Communities Act. Also, the Treaties will remain relevant for the interpretation of ex-EU legislation which was initially based on them (para 2.10).

What about the EU courts? Here the White Paper draws a distinction. On the one hand, post-Brexit laws will not be subject to the jurisdiction of the EU Court, and the UK’s courts will not be obliged to take ECJ rulings into account (presumably they could choose to do so, however). On the other hand, ex-EU laws will still have to be interpreted by reference to pre-Brexit case law of the EU courts, to ensure certainty. There’s no reference to post-Brexit case law, but again presumably the UK courts could choose to consider it.

The latter rule will not be absolute, however: pre-Brexit ECJ case law will have the same binding effect as UK Supreme Court judgments, and so the Supreme Court could overrule those judgments in the same limited circumstances in which it can (and rarely does) overrule itself. It will of course be possible for Parliament to overturn ECJ case law by amending the legislation, and the government hints that it might want to consider clarifying the circumstances in which the Supreme Court could overturn prior ECJ rulings.

A similar distinction arises as regards the supremacy of EU law: the EU court rule that EU law takes precedence over any conflicting national law, so the latter has to be disapplied by national courts in the event of any conflict. The supremacy rule will not apply to post-Brexit UK legislation, but it will still apply to pre-Brexit UK laws that conflict with ex-EU law.

Despite the general conversion of EU law, the White Paper insists on an exception for the EU Charter of Rights.  In that case, the ex-EU legislation will be interpreted after Brexit by the ‘rights underlying’ the Charter (ie the ECHR and other international treaties which the UK has signed), rather than the Charter itself.

Amending ex-EU law

Obviously the body of ‘ex-EU’ law will not remain unchanged forever. The White Paper discusses the process by which it can be changed in future. There are two key issues here. First, will any changes be the responsibility of the Westminster Parliament or government, or the parliaments and executives of the devolved bodies in Scotland, Wales and Northern Ireland? Secondly, within Westminster, what changes will be subject to Acts of Parliament, and what will be subject to delegated powers conferred upon the executive?

On the first point, the White Paper is vague about exactly what powers will be exercised by the devolved administrations, and this is likely to be a highly contested issue in practice.

On the second point, the distinction between Acts of Parliament and executive powers is important because an Act of Parliament allows for extensive public discussion and parliamentary scrutiny, whereas an act of the executive (usually in the form of ‘Statutory Instruments’) is subject to limited public or parliamentary involvement. For instance, there is far less time for discussion, and no prospect of tabling amendments.

The White Paper starts by mentioning some possible delegated powers for the Great Repeal Bill that will surely be uncontroversial. For instance, it refers to the references in ex-EU law to ‘EU law’, powers of the EU institutions, or information sharing with the EU. Since most of these references will be redundant (except possibly as regards continued sharing of police information, as the White Paper notes), there are limited policy choices to be made when replacing them. So there can be little objection in principle to the executive using such powers.

However, there is a further category of changes to EU law which will be more substantive. The White Paper gives a non-exhaustive list of cases where the government thinks it should have delegated powers: where a policy might change in light of the Brexit talks with the EU; where a policy changes as a direct consequence of leaving the EU; and where the level of detail is ‘not appropriate’ for an Act of Parliament.

More generally, the government argues that these powers must be widely defined and must apply not only to ex-EU law converted into EU law, but also Acts of Parliament linked to EU membership. The power for the executive to amend Acts of Parliament is controversial, and such clauses are widely known as ‘Henry VIII clauses’. Although the House of Lords Constitution Committee had previously argued that there should be extra powers of parliamentary scrutiny in this context, the government implicitly rejects this view.

Comments

The overall objective of ensuring legal continuity by retaining pre-Brexit EU law in force is logical, and the White Paper has thought many of the details through. It makes sense to ensure that legal continuity as much as possible by creating a distinct body of ex-EU law, where a form of the principle of supremacy still applies and ECJ judgments remain binding, subject to the rare case that the UK Supreme Court might want to overturn.

However, some of the detail has not been considered: what about future ECJ case law? What about cases concerning EU law in the UK pending in the UK courts or the EU courts on Brexit Day? What if a condition of ensuring market access to the EU after Brexit is to take relevant EU court case law ‘into account’? (Note that this falls short of making those judgments binding, and is even an even longer way from retaining the supremacy of EU law over national law). What about the domestic legal impact of any alternative court or dispute settlement system that might rule on UK/EU disputes after Brexit?

The hostility to the EU Charter forms an exception to the rule that prior EU law continues to apply, and raises much legal uncertainty. Does it also mean that ECJ rulings referring to the Charter should be ignored, at least to the extent that they refer to the Charter? Since many such rulings refer to other EU laws and interpret them in light of the Charter, there will in effect be an odd requirement to keep following part of a ruling but not all of it. But this will be like trying to remove an egg from an omelette, because the judicial reasoning on the Charter and the EU legislation is intertwined.

To some extent, this effect will be limited by the requirement to interpret the ex-EU law in light of the ‘underlying rights’ instead of the Charter. But what does this mean in light of the government’s intention to repeal the Human Rights Act, and replace it with a British Bill of Rights? What if the ECJ’s interpretation of the Charter was arguably more ambitious in a particular case than the relevant ‘underlying rights’ in the Charter? What if the relevant ‘underlying rights’ are set out in a human rights treaty which the UK has not ratified, or not made part of its domestic law? And there is no mention of the pre-Charter case law of the ECJ on human rights as ‘general principles of law’; what happens then?

Moving on to the amendment process, the White Paper’s initial examples of very technical changes to ex-EU laws that the government might wish to make are frankly misleading. For the White Paper then goes on to refer to a non-exhaustive list of broad discretionary powers which the government wants to make changes to the statute book in light of talks with the EU, to make consequential changes to policies or to fill in details of laws.

As drafted, these powers are potentially nearly limitless. They could, for instance, be used to adopt every detail of future policies on agriculture, fisheries, trade with non-EU countries or extradition to the EU without full parliamentary scrutiny or public discussion, because each of these are areas where the new laws could be regarded as changes consequential to leaving the EU.

So how should Parliament limit government powers? It will be hard to avoid conferring some substantive delegated powers on the government, as the time frame to implement a Brexit agreement with the EU (or the absence of one) before the likely Brexit Day of March 29, 2019 might be tight. On the other hand, there might be several months to spare, or there might be a transitional agreement keeping EU law in force for some time, so giving Parliament more time to act.

The best way forward is to rule certain issues off-limits entirely, particularly issues where EU law provides for essentially domestic legal harmonisation: for instance employment law, environmental law, consumer law, discrimination law. In those areas there is generally no reason why the law necessarily has to change if the UK leaves the EU, because the relevant laws are not usually about cross-border matters. (There are exceptions, like European Works Councils or carbon trading laws).

In other substantive areas, where there is a direct link with leaving the EU, Parliament should be given a right to rule on whether the conditions for conferring delegated powers on the government are met. Effectively it could decide whether the trigger for those powers had to be pulled due to lack of time or not. (Thanks to Professor Tammy Hervey for a version of this idea). There could be particular limits on the power of the executive to amend Acts of Parliament.

Also, the government could be pressed to make more effort to table Acts of Parliament well in advance of Brexit Day on the planned changes to some key areas, for instance agriculture and fisheries, to enable full parliamentary scrutiny. In particular, the planned customs bill could include rules setting out the domestic legal framework for UK’s post-Brexit international trade law (more on that specific issue another time).

Finally, on the issue of devolved assemblies, it is striking that the Brexit Minister’s foreword to the White Paper talks generally about a “significant increase in the decision-making power” of the devolved bodies, but the actual White Paper then does not give any detail of this. On the other hand it does go into some detail about the powers which can’t be conferred upon devolved assemblies, due to an intention to ensure a UK-wide single market.

Maybe we need a short, simple phrase to refer to the promise of devolved powers which is not then substantiated by any detail. Might I suggest…“the Vow”.

Judicial control of EU foreign policy: the ECJ judgment in Rosneft

ORIGINAL PUBLISHED ON EU LAW ANALYSIS

Two takes on ECJ ruling in Rosneft, on the challenge to EU sanctions against the Russian oil company.

Stian Øby Johansen, PhD fellow at the University of Oslo Faculty of Law*

Yesterday (March 28th) the Court of Justice of the European Union (the CJEU) delivered its judgment in the long-awaited Rosneft case (C-72/15, ECLI:EU:C:2017:236). The judgment clarifies some aspects of the CJEU’s jurisdiction over the Common Foreign and Security Policy (CFSP). Moreover, it is an important precedent in the field of EU sanctions law generally, and also resolve some questions of interpretation that are particular to the Russian sanctions.

In this blog post I will focus on what the judgment in Rosneft adds to the existing case-law on the review of CFSP decisions. Thus, I will not be discussing any of the more specific questions of EU sanctions law nor summarize the full 197 paragraph judgment. For those looking for a quick summary of the case, I refer to the succinct post by Maya Lester QC at the Sanctions Law blog.

CFSP sanctions: decisions and implementing regulations

I have already sketched out the background of the case in considerable detail in a blog post I wrote here following the oral hearing, and I co-wrote a blog post (with Alexander Arnesen) on Verfassungsblog on the Opinion of Advocate General Wathelet.  I will not repeat all this background here. But there is a couple of details that are essential to understanding the issue at hand here and the Rosneft judgment more broadly.

Recall that EU law sanctions (also known as “restrictive measures”) are enacted through a two-step process. First, the Council adopts a decision under TEU Title V, Chapter 2. This decision is then implemented in Union law (and thus domestically in the EU member states) by virtue of a regulation adopted under TFEU article 215. In the case of the Russia sanctions, as in most sanctions regimes, the wording of the respective decisions and regulations are virtually identical.

The use of two legal instruments with different legal bases — one decision with a CFSP legal basis, and one regulation with a legal basis in the TFEU — complicates matters when it comes to the jurisdiction of the CJEU. With regard to the regulation, the judgment in Rosneft confirms the obvious: any regulation adopted on the basis of the TFEU article 215 is within the jurisdiction of the CJEU (Rosneft paras 105-106). That is so irrespective of whether the regulation merely restates the decision.

On the other hand, the decision is a act adopted under the CFSP. The CFSP treaty provisions and acts adopted under them are carved out of the CJEU’s otherwise general jurisdiction over Union law (see TEU article 24 and TFEU article 275). To this carve-out there are two exceptions, a.k.a  claw-backs: the CJEU has jurisdiction to monitor compliance with TEU article 40 and to decide on the legality of decisions concerning “restrictive measures against natural or legal persons” (emphasis added). As I will come back to, both claw-backs were at play in Rosneft.

The remainder of this blog post focuses on the CJEU’s jurisdiction over such CFSP decisions, notably on the clarifications and contributions the Rosneft judgment offers to the ever-expanding case law in this field. (Key judgments in the previous years that have discussed these issues include Case C-155/14 P H v. Council et al  [2016], Case C‑439/13 P Elitaliana SpA v. EULEX Kosovo [2015], and Opinion 2/13 EU Accession to the ECHR [2014].)

The general scope of the CJEU’s jurisdiction over CFSP decisions

With regard to the general scope of the CJEU’s jurisdiction over CFSP decisions, the Rosneft judgment further cements the approach that has emerged in the case-law over the last couple of years.

First, the limitations on the CJEU’s jurisdiction and the two claw-backs explicitly provided for in TEU article 24(1) and TFEU article 275(2) have to be taken seriously. In relation to CFSP acts, the CJEU only has jurisdiction to (1) monitor compliance with TEU article 40, and (2) decide on the legality of restrictive measures against natural or legal persons. (Rosneft para 60.)

Second, while recognizing the explicit limitations on its jurisdiction in the treaties, the CJEU reiterates that those limitations must be interpreted narrowly (Rosneft para 74-75). Or, put differently, the provisions clawing back jurisdiction must be interpreted expansively.

What is new in Rosneft is the application of these starting points to a new issue: do the claw-backs apply in the context of preliminary rulings? This question must be answered separately for the each claw-back provision (Rosneft para 61).

Preliminary rulings and the legality of CFSP decisions in light of TEU article 40

One of the easier questions before the CJEU in Rosneft was whether the validity of CFSP decisions in light of TEU Article 40 could be determined in a preliminary ruling. The identical claw-back provisions in TEU Article 24(1) and TFEU Article 275(2) simply provide that the CJEU has jurisdiction to “monitor compliance with Article 40 [TEU]”.

There is nothing to suggest that such monitoring may only happen e.g  in actions for annulment. In other fields of EU law, it has long been clear that the CJEU has jurisdiction to declare Union acts invalid in preliminary rulings (see e.g. Case 314/85 Foto-Frost [1987]). Thus, due to the lack of an express and specific limitation, the CJEU concluded that its jurisdiction extended also to monitoring compliance of CFSP decisions with TEU article 40 in preliminary rulings (Rosneft paras 62-63).

Preliminary rulings and the legality of CFSP decisions concerning restrictive measures

The key jurisdictional question that the Grand Chamber had to deal with in Rosneft was whether it had jurisdiction to decide on the validity of a CFSP targeted sanctions decision in a preliminary ruling procedure. Due to the CFSP carve-out and the peculiar wording of the claw-back provision for restrictive measures in TEU article 24(1) and TFEU article 275(2), there has been significant uncertainty as to the correct answer to this question.

The relevant part of TEU article 24(1) reads as follows (emphasis added):

“The [CJEU] shall not have jurisdiction [over the CFSP], with the exception of its jurisdiction […] to review the legality of certain decisions as provided for by the second paragraph of Article 275 of the [TFEU]”.

The relevant part of TFEU article 275(2) reads as follows (emphasis added):

“the Court shall have jurisdiction […] to rule on proceedings, brought in accordance with the conditions laid down in the fourth paragraph of Article 263 of this Treaty, reviewing the legality of decisions providing for restrictive measures against natural or legal persons [adopted under the CFSP]”

In other words: TEU article 24(1) limits the jurisdiction to “certain decisions as provided for” by TFEU article 275(2), which in turn refers to “proceedings” that are “brought in accordance with the conditions laid down” in TFEU article 263(4). The latter provision provides that actions for annulment can be brought against acts of the EU institutions before the CJEU:

“Any natural or legal person may […] institute proceedings against an act addressed to that person or which is of direct and individual concern to them and does not entail implementing measures.”

The combined text of these provisions arguably suggests that the jurisdiction to determine the validity of CFSP targeted sanctions decisions only extends to actions for annulment brought by individuals. TFEU Article 263(4) ostensibly provides for the institution of proceedings for annulment; the types of acts that may be annulled are listed in TFEU Article 263(1)-(2). Conversely, then, the CJEU would lack jurisdiction to determine the validity of such a decision in a preliminary ruling. Against this, one may argue that jurisdiction to rule on the validity of Union acts is inherent to the complete system of legal remedies that the Union treaties establish.

How to solve this conundrum? AG Wathelet essentially suggested that the Court should interpret TFEU article 275(2) in the context of TEU article 24(1). In particular, he emphasized the use of the term “certain decisions” in TEU article 24(1), which suggest that the reference in TFEU article 275(2) to TFEU article 263(4) concerns the type of act (“restrictive measures”), and not the type of proceedings (i.e. actions for annulment). See AG Wathelet in Rosneft, para 61 et seq. Consequently, the validity of CFSP decisions can be determined in any kind of proceedings — also in preliminary rulings.

A further point is that the French language version of TFEU article 275(2) differs from the English in a crucial respect. It provides that the CJEU has jurisdiction “pour controller la légalité de certaines decisions visées à l’article 275, second alinéa  [TFUE]”. This seems to suggest an interpretation in line with that of AG Wathelet. Although  AG Wathelet does not discuss the language discrepancy directly, French is the “langue de travail” at the CJEU, and one may speculate that AG Wathelet relied more heavily on the French version of the treaty text than the English.

In Rosneft the CJEU reaches the same conclusion as AG Wathelet; the CJEU has jurisdiction to determine the validity of CFSP decisions in preliminary rulings. In doing so, the CJEU recognizes the textual discrepancy between the otherwise identical claw-back provisions in TFEU article 275(2) and TEU article 24(1), but not (explicitly) the linguistic discrepancy  However, it is slightly more careful than AG Wathelet in grounding its argument in other sources than (con)text — perhaps because the Court is indeed aware of the discrepancy between the language versions.

There are in particular two supporting arguments that the CJEU relies on. First, it puts forward a systemic argument. According to the CJEU, it is “inherent” in the Union’s “complete system of legal remedies or procedures that persons bringing proceedings must, when an action is brought before a national court or tribunal, have the right to challenge the legality of provisions contained in European Union acts” (Rosneft paras 67-68).

Second, the CJEU  emphasizes the fundamental rights dimension of judicial protection (Rosneft paras 69-75). As usual in cases on jurisdiction on CFSP acts, it refers in passing to the concept of the “rule of law” (Rosneft para 72). But it also refers extensively to article 47 of the Charter of Fundamental Rights (Rosneft paras 73-74). While the Charter has been mentioned in passing before in cases concerning CFSP decisions (notably in Case C-455/14 P H v. Council et al. [2016]), the emphasis has usually been on the nebulous concept of the rule of law. In Rosneft we see the reverse: an emphasis on the fundamental right of effective judicial protection, which is laid down in positive primary law in CFR article 47.

The conclusion that the CJEU draws is thus built on a principled and even more solid ground than that of AG Wathelet. The question of whether the validity of CFSP decisions can be determined in preliminary ruling proceedings must therefore be regarded as settled following the Rosneft judgment.

Graham Butler, Assistant Professor of Law, Aarhus University, Denmark

 

The Question

 

Can the Court of Justice of European Union (‘the Court’) assert jurisdiction and provide a national court with an interpretation of Union law in a case referred to it from a national court under an Article 267 TFEU preliminary reference, when the subject matter is in regard to the Common Foreign and Security Policy (CFSP)? This was one of a number of questions referred to the Court of Justice from the High Court of England and Wales in Rosneft (C-72/15). This week, the Court meeting in a Grand Chamber formation, answered this jurisdictional question in the affirmative. Given the significance of this judgment for the law of the Common Foreign and Security Policy (CFSP), and previous discussion of the Opinion of the Advocate General in 2016, yesterday’s judgment was hotly anticipated given its implications for the ‘specific rules and procedures’ that are applicable to the law of CFSP. As the Court continues in a line of case law to clarify its jurisdiction in CFSP, it is ultimately a question of constitutional importance for the Union’s external relations.

Ambiguity of the Treaties: Jurisdiction

 

Rosneft concerns the EU’s restrictive measure regime, more popularly known as sanctions. The governance scheme surrounding sanctions is a developed body of case law, in which individuals subject to them have the possibility to challenge them directly before the EU’s General Court, the administrative court of the Union. Given that the locus standi (standing) of taking actions to the Court is a narrow right, the use of preliminary references, otherwise known as referrals from national courts, also functions as an indirect means for legal entities to access the Court for adjudication on matters of Union law. What makes the Rosneft case noteworthy, in comparison to other aspects of CFSP and sanctions case law, is that it is the first case on the Court’s jurisdiction to rule on sanctions not taken directly to the EU General Court. Rather, the Rosneft case arrived at the Court of Justice through the preliminary reference procedure from a national court, in this case, the High Court of Justice (England and Wales) in the United Kingdom, upon the basis of Article 267 TFEU.

Sanctions have a peculiarity in their procedural sense. Firstly, it requires a CFSP Decision, done on an Article 29 TEU legal basis. Secondly, a subsequent Regulation is decided upon an Article 215 TFEU legal basis, which allows sanctions to be implemented throughout the Union. Accordingly, in Rosneft, on the table was Council Decision 2014/512/CFSP, Council Decision 2014/659/CFSP, and Council Decision 2014/872/CFSP (collectively, ‘the Decision’). Furthermore, there was Regulation 833/2014, Regulation 960/2014, and Regulation 129/2014 (collectively, ‘the Regulation’). The Decision taken by the Council, where Member States as a general rule act unanimously, were directly in response to the alleged actions of Russia in Ukraine. Substantively, the applicant contested the implementation measures by way of Regulation taken by the British Government as a result of the CFSP Decision, of which it too was part of, on the grounds that it contained ambiguities. Accordingly, the substantive question was whether the CFSP Decision was one the one hand sufficiently clear, or on the other, imprecise?

In Rosneft, both the Decision and accompanying Regulation were challenged. Yet, it is unclear whether the Court has the jurisdiction to fully answer the questions asked of it, given the first legal act is adopted on a CFSP legal basis (the Decision), and the second legal act on a non-CFSP legal basis (the Regulation). The Court’s jurisdiction in the latter is undisputed given its adoption on Article 215 TFEU, however, much more speculative and up for question is the Court’s jurisdiction on the Decision, given its adoption on a CFSP legal basis. Prior to recent treaty revision, questions surrounding the Court’s jurisdiction rumbled for decades. However, the Treaty of Lisbon, saw a flipping effect, in that jurisdiction of the Court was to be assumed, unless specifically derogated from by the Treaties. One of these derogations was acts adopted upon a CFSP legal basis, which is elaborated in Article 24(1) TEU and Article 275 TFEU.

Firstly, Article 24(1) TEU, inter alia, states that, ‘The Court of Justice of the European Union shall not have jurisdiction with respect to these provisions [CFSP], with the exception of its jurisdiction to monitor compliance with Article 40 of this Treaty and to review the legality of certain decisions as provided for by the second paragraph of Article 275 of the Treaty on the Functioning of the European Union.’ Secondly, Article 275 TFEU states that the Court has the jurisdiction to, ‘…rule on proceedings, brought in accordance with the conditions laid down in the fourth paragraph of Article 263 of this Treaty, reviewing the legality of decisions providing for restrictive measures against natural or legal persons adopted by the Council on the basis of Chapter 2 of Title V of the Treaty on European Union.’

This consequently points to Article 263 TFEU and its fourth paragraph stating, ‘Any natural or legal person may, under the conditions laid down in the first and second paragraphs, institute proceedings against an act addressed to that person or which is of direct and individual concern to them, and against a regulatory act which is of direct concern to them and does not entail implementing measures.’ The first and second paragraphs in Article 263 TFEU do not appear to envisage the possibility for the Court to have the ability to answer questions on preliminary references from national courts. The leading academic material of EU procedural law previously acknowledged that the Court ‘may afford possibilities’ in this area (Lenaerts et al. 2014:458), recognising that it is by no means a settled question. This is, until the right opportunity arose to address it, which was Rosneft.

So what did the Advocate-General say firstly? AG Wathelet said the Court did have the jurisdiction to answer the substantive questions of it by the national court. Yet how did he reach this view in light of the treaties, and their apparent formulation to exclude the Court in such matters? Whilst acknowledging the Court’s jurisdiction in CFSP matters appears to be limited by Article 24(1) TEU and Article 275 TFEU ‘at first sight’ (para. 39), he skirted a narrow interpretation of Article 263 TFEU and its apparent lack of foresight for seeing preliminary references in the equation. For the aforementioned Article 24(1) TEU and Article 275 TFEU, it can be assumed there was there a need for them to have the intended same effect. However, they are worded differently, and thus, the Advocate-General said, might put out the ‘false impression’, that the Court had no jurisdiction. Thus, he said, the two articles enable the Court ‘to review the compliance with Article 40 TEU of all CFSP acts’, (para. 65), regardless of what way the question ends up at the Court, that is, through a direct action, or a preliminary reference.

The Opinion of the Advocate-General is a demonstrative example of how the restatement of certain constitutional provisions within primary law have the ability to be read differently, despite the intentions of the drafters may have been for such restatements to have the same meaning. Given this part of the Opinion of the Advocate-General on jurisdiction, which was non-binding, what did the Court say, and did it reach the same conclusion?

Judgment

In the judgment issued on 28 March 2017, the Grand Chamber, before going onto matters of substance, had to handle the important question of jurisdiction, and furthermore grapple with the admissibility of the question of jurisdiction. The Council had queried whether the questions referred by the national court could have been answered in respected of the Regulation alone (non-CFSP), rather than contesting the validity of Decision (CFSP) (para. 48). Thus, along this line of thinking, the Court would then not have to assert any jurisdiction on the CFSP legal basis, for which the Council has always viciously defended against any judicial incursion by the Court (Cases C-455/14 P, H v. Council; C-439/13 P Eulex Kosovo; C-263/13 TanzaniaOpinion 2/13; and C-658/11, Mauritius). The Court rejected this Council viewpoint, stating that it is up to national courts alone to ask questions of the Court on the interpretation of Union law (para. 49). The Court was therefore only in a position to not answer a reference when it fails to have a legal question in need of answering, or is only a hypothetical question (para. 50).

The Court furthermore in its judgment stated that only focusing on reviewing the legality of the Regulation (non-CFSP), and not the questions asked of it as a whole by the national court, which would not be adequately answering questions asked of it (para. 53). Moreover, despite the sharp distinction between a CFSP act and a non-CFSP act, in order to impose a sanction within the EU legal order, the Court noted that they are inextricably tied. Given how sanctions are imposed in the EU legal order, it is a perfect demonstration of the possibility of close-knit relations between CFSP and non-CFSP legal bases, given the Court in Kadi I said the link occurs when it has been made ‘explicitly’ (Joined Cases C-402/05 P and C-415/05 P, para. 202). The Court in Rosneft however hypothesized that even if the latter Regulation implementing a CFSP Decision was to be declared invalid, that would still mean that a Member State was to conform to a CFSP Decision. Thus, in order to invalidate a Regulation following a CFSP Decision, the Court would have to have jurisdiction to examine that CFSP Decision (para. 56).

Once the admissibility of the question of jurisdiction was answered, the Court progressed onto answering the jurisdictional questions raised, in which it concluded that, ‘Articles 19, 24 and 40 TEU, Article 275 TFEU, and Article 47 of the Charter of Fundamental Rights of the European Union must be interpreted as meaning that the Court of Justice of the European Union has jurisdiction to give preliminary rulings, under Article 267 TFEU, on the validity of an act adopted on the basis of provisions relating to the Common Foreign and Security Policy (CFSP)…’ (Ruling 1 of 3). Yet, Court’s assertion of its jurisdiction was not completely unqualified. Rather, it must be meet one of two conditions. The first condition that it may meet, is that it must relate to Article 40 TEU on the Court having the jurisdiction to determine the boundary between CFSP and non-CFSP in its border-policing role. The second condition that the Court’s allows for the assertion of its jurisdiction, is when it involves the legality of restrictive measures against natural or legal persons.

The remark on Article 40 TEU is significant from the Court (paras. 60-63). From some corners, the Court has been subject for some remarks for not properly utilising this Article for elucidating what the precise boundaries for a CFSP and non-CFSP. To date, it has shunned such possibilities provided to it to determine the fine lines of this providing, underling the fact that CFSP is an obscure area of the treaties, legally speaking. Rosneft perhaps elucidates some reasons why Article 40 TEU has not been used by the Court to date, namely that it does ‘not make provision for any particular means by which such judicial monitoring is to be carried out’ (para. 62). Thus, given this lack of guidance, the Court finds itself falling back on Article 19 TEU to, ‘ensure that in the interpretation and application of the Treaties the law is observed.’ (paras. 62 and 75).

It was advocated nearly a decade ago that rule of law concerns could be used to provide justification for the Court’s jurisdiction in CFSP cases upon a preliminary reference (De Baere 2008:186). Whilst this can be a common phrase with large recourse in a number of situations to justify Court actions, the Court instead of utilising this argument alone here (para. 72), went one-step further. alluded to the EU’s Charter on Fundamental Rights (CFR), selected Article 47 CFR, the right to an effective remedy and a fair trial, ensuring who has ‘rights and freedoms guaranteed by the law of the Union…the right to an effective remedy’. (para. 73), as a basis for clarifying this position on its jurisdiction.

From the Court’s perspective in CFSP-related cases, it certainly does not want the possibility for national courts to test the possibility for them to attempt and try invalidate Union legal acts in whatever form (paras. 78 and 79). It it long-standing jurisprudence of the Court stemming from Foto-Frost (314/85), that it alone has the ability to invalidate Union law, which the national courts cannot do. Thus, national courts only have the possibility to invalidate implementing national measures subject to their own constitutional requirements, and not the Union legal acts themselves. The most recent example of the Court clarifying (ie. extending) its jurisdiction into the CFSP arena was H v. Council (C-455/14 P). Unlike H v. Council however (Butler 2016:677 and on this blog), in which the Court asserted jurisdiction, it then proceeded to fling the substantive matter back to the General Court for adjudication. The Court here in Rosneft had to proceed and answer the substantive questions itself, which conclusively, upheld the sanctions in question.

Analysis

The Court and the Opinion of Advocate-General on its jurisdictional points can be commended for not allowing a legal lacuna to be created by further disenfranchising CFSP as a particular sub-set of Union law, and ensuring it was kept as close of the normal rules surround preliminary references as possible. Such a situation, where jurisdiction were not asserted, could have lead national courts to not send preliminary references to the Court in further questions seeking clarification on points of Union law. This potential chilling effect would most certainly hamper not just the nature of sanctions, but also the coherent interpretation of Union law as a whole, for which the Court is the ultimate adjudicator. By coming to the conclusion that the Court did have the jurisdiction, empowering itself with the ability to answer the substantive questions, AG Wathelet acknowledged he was breaking with the view of his colleague, AG Kokott, from her view provided in Opinion 2/13 on the EU’s accession to the ECHR. AG Wathelet said that without the Court having jurisdiction, it would undermine under Articles in the Treaties, namely, Article 23 TEU, which guarantees access to a Court and effective legal protection (para. 66), which albeit by an alternative method, the Court broadly arrived at the same conclusion.

Jurisdictional questions are not just inconsequential matters in the exercise of EU foreign policy, but have ramifications for EU procedural law, and the constitutional framework in which Union law operates. The Court’s judgment, clarifying jurisdiction for itself, when it was in doubt, further widens the potential for its scope for a role in EU foreign policy. Hence, how broad a deference is there at the Court to questions that ultimately hinge upon ‘sensitive’ areas of policy? Do Member States want the Court to have jurisdiction in CFSP? The Treaties do their best to prevent it, and five of the intervening six Member States and the Council in Rosneft pleaded that the Court did not have the ability to rule on the validity of CFSP acts. Yet the Court is no stranger to such questions, as it has dealt with jurisdictional questions on sensitive areas before, albeit in a slightly different context. The Area of Freedom, Security, and Justice (‘AFSJ’ or ‘Justice and Home Affairs’)). The Gestoras (C-354/04 P) and Segi(C-355/04 P) cases here provide us with suitable examples. In a pre-Lisbon context, the Court said to interpret the cases as falling outside the scope of the then Article 35(1) TEU because they were preliminary references would not be in ‘observance of the law’. Thus, the Court ruled in both Gestoras and Segi that jurisdiction for the Court in that field was permissible.

Given the Court’s judgment here in Rosneft, there is no doubt that it had to be slightly inventive to overall what was clearly a shortcoming in the drafting of the Treaties. For the Court to have not asserted jurisdiction in Rosneft would have seemed contrary to the overall premise upon which the Union is a ‘complete system of legal remedies’, which again it cited in Rosneft (para. 66), stemming from Les Verts (294/93). Do the Treaties allow vacuums to be created where judicial review is excluded, or does it by reasonable means provide for judicial review? The latter was not only an easy choice, but also the more logical one. Article 19(1) TEU states that the Court, ‘ensure that in the interpretation and application of the Treaties the law is observed’, and that, ‘Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law.’

This, coupled with the Court’s own ‘Declaration by the Court…on the occasion of the Judges’ Forum organised to celebrate the 60th anniversary of the signing of the Treaties of Rome’ made the day before the Rosneft judgment was published, commenced with restating the premise that the EU is, ‘is a union governed by the rule of law’. Yet such spirited measures are always dampened by other events, and it is hardly in fitting with recent developments at the General Court. The NF and Others v. European Council cases, and the Orders by the General Court on 28 February 2017 (T-192/16, T-193/16, and T-257/16), stated that it did not have jurisdiction on the question of the legal basis upon which an ‘EU-Turkey statement’ was reached. The likelihood is therefore that such questions about the scope of the Court’s jurisdiction in non-CFSP matters will rumble on.

Whilst this Rosneft judgment has clarified the scope of the Court’s jurisdiction on preliminary reference cases dealing with CFSP-related matters, one has to ask why the litigant did not instead seek to go straight to the EU’s General Court with an action for annulment claim, seeking the annulment of the sanctions applying Union-wide. The Court said that the basis for actions for annulment through direct actions from the treaties do not constitute the only means for which sanctions are challengeable (para. 70). Thus, from this, we can deduce that Rosneft opens the basis for future forum shopping when legal entities are subjected to the Union’s comprehensive sanctions regime under the auspices of CFSP in the future.

Remaining questions on the legal limits of CFSP as a special area of area are yet to be fully answered in a categorical way. One example of such is the doctrine of primacy, with lingering questions on its applicability to CFSP. Even with this, jurisdictional questions in CFSP remain. In a recent Order of the General Court in Jenkinson v. Council (T-602/15), it found it did have the jurisdiction to deal with a staffing case stemming from a CSDP, under the wing of CFSP. This demonstrates the caution of the General Court on leading the way on jurisdictional matters, preferring to let the Court of Justice lead the way.

Nonetheless, Rosneft clarifies that CFSP is one (small) step towards wider integration with the rest of the EU legal order. Former Judge at the Court, Federico Mancini said once in a speech at the Danish Supreme Court (Højesteret) in Copenhagen that without the system of preliminary references, that the ‘roof would collapse’ (Mancini and Keeling 1991:2). Indeed, this week’s Rosneft judgment, ensuring that Article 267 TFEU preliminary references in cases involving CFSP can be heard, upholds this notion rather tightly.

Barnard & Peers: chapter 10, chapter 24

Photo credit: The Hill