Thursday, 21 March 2019

Brexit and Extending EU Membership: The Legal Issues

Professor Steve Peers, University of Essex

As the Brexit day deadline of March 29th looms without approval of the proposed withdrawal agreement, tonight’s European Council meeting agreed conclusions offering an extension of UK membership of the EU in principle. What are the legal issues concerning the extension of EU membership?

EU law issues

The crucial part of tonight’s conclusions stated that:

The European Council agrees to an extension until 22 May 2019, provided the Withdrawal Agreement is approved by the House of Commons next week. If the Withdrawal Agreement is not approved by the House of Commons next week, the European Council agrees to an extension until 12 April 2019 and expects the United Kingdom to indicate a way forward before this date for consideration by the European Council.

So the European Council has not formally adopted an extension, but has rather offered to adopt one based on events in the UK next week. If the House of Commons approves the withdrawal agreement next week, it’s offering an extension to 22 May to sort out the details (notably the Act of Parliament necessary to implement the withdrawal agreement). If the agreement is not approved next week, a shorter extension to 12 April is offered, and the EU expects the UK to indicate what it sees as the way forward before this date.

The starting point for legal discussion of this issue is Article 50(3) TEU, which provides, as regards a Member State withdrawing from the EU:

The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period. (emphasis added)

Unanimity can still apply despite abstentions (Article 235 TFEU), and the European Council can, if necessary, act by written procedure (see its Rules of Procedure). It may well be the case that the written procedure is used to adopt the formal extension decision next week. It logically follows that the Member State concerned has to agree to the text of the relevant European Council decision, in particular as regards the length of extension. There’s no formal role for the European Parliament or national parliaments, but they might choose to express an opinion which could have some influence. Article 50(3) is silent on whether or not there can be multiple extensions.

During any extension, the UK would have the same rights and responsibilities as it would ordinarily have as a Member State otherwise, including the continuing right to revoke its notification of intention to leave the EU unilaterally (see the CJEU’s Wightman judgment). This follows on from two earlier CJEU rulings (discussed here and here), in which the Court confirmed that the UK remained a fully-fledged Member State throughout the main two-year period after notifying its intention to leave the EU. In other words: Membership means Membership. (This rule doesn’t prevent political conditions being attached to the EU’s decision to agree to an extension though, such as those in tonight’s conclusions).

This general rule raises a specific issue relevant to extension of the UK’s EU membership. Would the UK have to hold European Parliament elections, set for May 23-26? (The date is based on the basic law on EP elections, since amended in 2018 on other points).  The answer would obviously be no, if the extension did not go past May 22. Arguably the answer would still be no if the extension went no further than June 30 – as requested by the Prime Minister – because the new European Parliament would only take office after that point. However, this is disputed (see the recent EU room document on extension, Wednesday’s Commission paper, and the contrasting views of Professors Barnard and Weatherill, Professor Spaventa and the UK’s CJEU Advocate-General Eleanor Sharpston). This dispute likely explains why tonight’s conclusions offer an option of an extension to May 22 – although there is no explicit mention of the elections issue.

In the event of extension after June 30, the UK would certainly be in breach of its obligation to hold EP elections, unless a special exception was granted to it. This is because the Treaties refer to election for five-year terms, and a Council decision (see link above) sets out the election dates. Both the Treaties and the basic law on EP elections need unanimous national ratification to amend them. Article 50 does not refer to granting exceptions from EU law, except as regards the departing Member State’s absence from discussions concerning its departure. While new Member States do have temporary exceptions from the obligation to elect MEPs, they are covered by a different legal framework: Article 49 TEU, which deals with accession, expressly allows for “adjustments” to the EU Treaties. As noted above, tonight’s conclusions make no specific mention of the elections issue (it appeared in an earlier draft, but was dropped).

Would the EP (and the new Commission which the EP has a big role in appointing) be acting illegally, if the UK had not elected MEPs in time? The EU courts have answered a similar question before, as regards the Santer Commission which resigned irregularly and was not immediately replaced. In the British Airways judgment, it was held that the Commission’s actions adopted during this period were not illegal.  There was also a brief period when the Commission’s status was uncertain, as the Lisbon Treaty came into force a month after a new Commission (with fewer Commissioners) was due to be appointed in 2009. In practice, the new Commission was appointed after a short delay, with the old Commissioners spending a short extra period in their jobs.

If the UK held EP elections in (say) September, there could be a delay in appointing a new Commission or adopting new EU legislation until then. (A new EP takes a while to have a big role in adopting legislation anyway, since a lot of proposed legislation is wrapped up before the outgoing EP dissolves for elections).  There might, however, be some complication as regards the number of MEPs per Member State (see the relevant European Council decision).

UK legal issues

In order to change ‘exit day’ as far as Westminster legislation is concerned, it’s necessary to adopt secondary legislation – a statutory instrument approved by Parliament – under s 20 of the EU Withdrawal Act. It’s been suggested that a Statutory Instrument could be tabled next week. (The UK doesn’t need to adopt a new law to hold EP elections, since the repeal of the legislation concerned has not been commenced yet). In the event that an extension decision is adopted, but the definition of ‘exit day’ has not changed in the UK, it’s been argued that this does not mean that the UK leaves the EU with no deal , but rather that it stays in the EU with no domestic legal framework to give effect to EU law (although it might be possible to fix this quickly).

Apart from the legal issues directly related to the extension, next week is likely to see a number of crucial votes relating to the UK’s imminent and future relationship with the EU. Time will tell what indirect effect they may have on the length and circumstances of the UK’s extended EU membership – and in particular whether the UK government and parliament is able to agree upon a way forward in the event that the withdrawal agreement is not approved.
Barnard & Peers: chapter 27
Photo credit:

Sunday, 17 March 2019

Of extension of UK membership and basic democratic principles: why the UK will need to hold EP elections if its membership of the EU is prolonged beyond the 22nd of May

Professor Eleanor Spaventa, Bocconi University

To say that the political situation is the UK regarding Brexit negotiations is volatile is an underestimation of reality; Mrs May’s tactic of running down the clock might or might not be successful, but it also appears to have backfired, since now there is an unavoidable need to seek an extension to Article 50 TEU. Should the Withdrawal Agreement finally be accepted by the British Parliament this week, the UK will need an extension to the exit day in order to pass all the legislative instruments needed before withdrawal from the EU.

Should the Withdrawal Agreement be rejected, then the UK will need an extension to either prepare for a non-agreed exit, or to decide where its future lies. But once again the political turmoil, and the options available, are constrained by the constitutional framework of the EU. In particular, the issue is whether the UK would have to hold European Parliament elections if its membership of the EU is to continue beyond the 23rd of May. The problem of course is that holding EP elections is symbolically and politically problematic for the Government, and yet, even opting for a shorter extension, the UK might need more time to pass all the required legislation.

The European Commission’s view seems to be that the UK will not be able to seek an extension beyond 23rd May unless it holds EP elections. The Commission’s position is based on a very simple and yet, in the writer’s opinion unchallengeable premise: EU citizens have a Treaty right to vote for the European Parliament and, as long as the UK is a member of the EU, that right is bestowed on its citizens and on EU citizens living in the UK.

Yet, illustrious EU lawyers have argued in this blog and elsewhere that an extension could stretch to the end of June, without compromising the legitimacy of the newly elected European Parliament. The same point was made in a legal opinion to the European Parliament. Yet, to focus simply on the legitimacy of the European Parliament misses the point: democracy is not a mere exercise in institutional balance – if it were so there would be nothing preventing any Member State or the EU to prolong the term of their Parliaments beyond the fixed mandatory term. After all, if one Member State were to be allowed not to hold European Parliament elections because of its own political problems, why not another Member State for its own political problems. So at first sight, the idea that the UK could be a member of the EU and withhold the right of its citizens, and of EU citizens resident in its territory, to vote for the European Parliament elections seems to be an anathema for a polity which is based on the rule of law. And the legal impossibility of such a scenario is backed not only by the Treaties, and the Charter, but also by the obligations bestowed on the UK and all of the other Member States by the European Convention on Human Rights.

The law on EP elections as it stands

Article 14(3) of the TEU provides that members of the European Parliament shall be elected for a term of five years by direct universal suffrage, whereas Article 20 (2)(b) TFEU provides that every citizen of the EU shall have a right to vote and stand for elections in the State where they reside under the same conditions as nationals. The Court of Justice, in its ruling in Delvigne (discussed here), clarified that the franchise for European Parliament elections is a matter falling within the scope of EU law, even in relation to own citizens. For this reason, the Charter of Fundamental Rights applies; the Court found that the deprivation of the right to vote of a own citizen is a limitation of the right conferred in Article 39(2) Charter; as such it must be justified under the conditions provided for in Article 52 Charter. The limitation to the right to vote must therefore be provided by law (which in the case of the UK would require a new Act since at present the UK simply has not made any provision for the EP elections), must be justified in relation to a public interest recognized by the Union, be necessary for the attainment of that interest and be proportionate. The disenfranchisement of an entire nation would fail to meet these requirements: it would be difficult to identify a public interest pursued by such disenfranchisement (unless one believes that protecting the Conservative Party from self-implosion can be qualified as a public interest), nor would disenfranchisement be proportionate or necessary to ensure withdrawal.

Furthermore, rights conferred by the Charter cannot fall below those provided for in the ECHR: the European Court of Human Rights has clarified in Matthews that Article 3 of Protocol 1 of the ECHR, the right to free elections, applies in relation to the European Parliament. Member States are then obliged, under the Convention, to guarantee the franchise for it, as well as respect basic democratic principles. For this reason, the UK was in violation of its ECHR obligations for disenfranchising citizens in Gibraltar who did not (at the time) have a right to vote for the European Parliament.

If the UK seeks an extension it will remain a Member State of the EU, and as such bound by the Treaties and the Charter. The UK is also bound by the ECHR in this matter, both as a Member of the EU and as a Member of the Council of Europe. It therefore seems that it would not be able, under both EU and ECHR law, to disenfranchise its own citizens.

Barnard and Weatherill, as well as AG Sharpston, suggest that the democratic issue could be overcome by prolonging the mandate of the current British MEPs – yet, such a suggestion is not only contrary to the Treaty but also inimical to the very basics of democratic principles (it is dictators that usually resort to these systems). Their suggestion that, since those MEPs have been democratically elected in 2014, they can continue to represent British citizens past the life of this European Parliament, without seeking a new mandate is far from being persuasive, not only because there is no such possibility in the Treaties, but also given that the passive electorate has changed in the past five years and that prolonging MEPs would entail the disefranchisement of those who have come to voting age in the past 5 years. And even if it were legally possible under EU law to provide such a transitory arrangement, through a derogation from the Treaty provisions as suggested by AG Sharpston, such a transitional arrangement would still breach Article 3 of Protocol 1 of the ECHR.

In as much as we might want to avoid Brexit chaos, the end cannot justify the means in this case; disenfranchisement is illegal and infringes the founding principles upon which the EU is founded (democracy, rule of law and protection of fundamental rights). Furthermore, following the ruling in Wightman (discussed here), the UK can at any point withdraw its notice under Article 50. As clearly stated by the Court, up until that point in which the Withdrawal agreement enters into force or the UK has exited by virtue of the passing of time, the UK is and remains a full member of the EU (also during the extension) – and its citizens therefore are subject to all its rules and derive all the rights stemming from the Treaties.

To allow the UK to remain a member of the EU without participating to the European Parliament elections would not only be illegal, it would be very dangerous (not least in these political times): Brexit is bad enough as it is – it cannot be allowed to destroy the very values upon which the EU is founded and which it already struggles to protect.

Barnard & Peers: chapter 3, chapter 27
Photo credit: Evening Standard

Thursday, 14 March 2019

Extension and elections: We need to talk about Article 50

Professors Catherine Barnard and Steve Weatherill, Universities of Cambridge and Oxford respectively

Its 261-word text is now infamous. It is brief, at times laconic, and leaves many things unsaid or uncertain. So, what does - and doesn’t - Article 50 permit?

Let’s start with the easy stuff.  Article 50(3) says that the two-year period can be extended by the European Council acting by unanimity (all 27 EU heads of state or government do not have to agree, it means only that none must disagree; abstentions do not block unanimity). Subject to the intended purpose and length, it is thought that the EU would say yes to an extension. Importantly, the UK would still be a Member State during this extended period.

An extension might give the UK more time to convert the Withdrawal Agreement into a statute, the Withdrawal Agreement Bill (WAB). This assumes, of course, that the Commons has approved Theresa May’s ‘deal’, comprising the Withdrawal Agreement and the Political Declaration on the future relationship. So far it has been rejected twice (MV1 and 2); it may still get through on its third or fourth iteration.

If Parliament rejected Mrs May’s deal, an extension would provide time to prepare the primary legislation and the remaining 600 or so Statutory Instruments needed on the statute book for a no-deal Brexit. It might too offer space for a General Election and/or referendum, although the political obstacles are high. The EU may be more likely to offer an extension in the latter scenario.

There are several alternative scenarios for how long an extension may last:

- To the end of May, just before the European Parliament elections, to allow enough time to get the WAB through
- To the end of June, just before the new European Parliament sits, again to get the key legislation through (this is the basis of the government’s motion of 14 March 2019), or to the start of September when the European Parliament starts to make some key decisions
- To the end of the year, to ensure that the legislation is passed in the UK
- To the end of 2020, which is the end of the EU’s current budgetary period (and which also coincides with the planned end date of the transition period under the Withdrawal Agreement)
- To the end of 2022, by when the shape of a trade deal for the future might have become clear, so the UK could move from existing membership to the new arrangements, possibly via a further period of transition. This would avoid the need for the Northern Ireland backstop since the UK would remain a Member State, although its fate after 2022 would depend on the terms of the deal struck (if any). The UK would remain a full member of the EU institutions and so avoid the ‘vassal state’ status envisaged by the arrangements for transition if the Withdrawal Agreement comes into force.

If a short extension is chosen, say three months, can Article 50(3) be used to extend the Article 50 period again, and again? We believe the answer is yes, for the simple reason that Article 50 does not prohibit it. Nor did the Court of Justice, in its Wightman decision, hint at any objection to serial extensions.

The UK would need to ask the European Council for an extension, and the member states would need to act unanimously to agree it (again abstentions do not block unanimity: Art 235 TFEU). Most likely, in order to provide a sense of political authority, this could be agreed at the next European Council summit on 21 March. Can the European Council lay down conditions on the extension? Article 50 is silent on the point. Our view is that Article 50 should be read flexibly to allow for the possibility to include particular ad hoc adjustments needed to ensure that extension is feasible. This would leave space for the political process, which seems likely to require some commitments by the UK about what it wants to achieve during the period of extension.

In domestic law, Section 20(1) of the EU(Withdrawal) Act 2018 provides that exit day is 29 March 2019. Section 20(4) allows that date to be changed by regulations. As the government’s explanatory notes acknowledge: “A change in the date is possible under Article 50(3) of the TEU. Regulations made under subsection (4) would be subject to the affirmative procedure.” Using this procedure will not be straightforward for Westminster politicians. However, if/when MPs support a motion to extend the Article 50 period, it would be difficult for Parliament then not to provide the means, most obviously by approving an order changing the designated exit day.

Elections for the European Parliament will take place at the end of May. A European Council Decision (2018/937) recognises the possibility that the UK will still be a Member State and makes provision for British MEPs accordingly. So what would happen if the UK is still a Member State because Article 50 has been extended? UK nationals, and EU nationals living here who have a Treaty-based right to vote in EP elections, should surely still be represented, not least because the EU is based on the rule of law, which includes respect for democracy. (See also the summary of the European Parliament’s legal service opinion, in the Annex).

The terms of an extension could include a commitment by the UK to hold elections in May. While this looks possible on paper, the politics at Westminster are potentially toxic. UK legislation would be needed for elections to be held: Section 4 of the European Parliamentary Elections Act 2002 - due to be repealed by Schedule 9 of the EU(Withdrawal) Act 2018, but that part of Schedule 9 is not yet in force - would require an Order, approved by both Houses to appoint the day for those elections. There may need to be other orders, such as designation of returning officers etc. The UK will have to act quickly – by some time in April – since other Member States which have received the UK seat allocations will need to adapt their processes.

Deferring the elections until the way ahead is clearer would suit the UK, but the EU needs a properly constituted European Parliament in place to operate on a secure constitutional basis. Outright refusal by the UK to hold elections would not mean that the Parliament’s actions were robbed of validity, for that would be to grant a state acting in breach of the Treaties a power to paralyse the workings of the EU.

Could the EU itself agree to extend the UK’s status as a Member State without the need to hold EP elections here in May? The Treaties direct that the Parliament’s members ‘shall be elected for a term of five years by direct universal suffrage in a free and secret ballot’ (Art 14(3) TEU; also Art 223 TFEU).  Could the European Council could agree to British MEPs continuing to sit without the need for election in May?  In our view, this would not contradict Article 14(3) TEU: those MEPs have, after all, been elected for a term of five years by direct universal suffrage in a free and secret ballot – just not in May 2019, but rather in 2014.

This, we suggest, could be agreed within the context of the negotiations. Article 50 has, after all, already been read flexibly and creatively to deal with matters not strictly solely concerned with the issues connected with withdrawal – witness the Irish backstop, which is clearly directed at the future post-withdrawal.

In similarly creative vein, an extension of the mandate of the existing British MEPs could be agreed in the context of negotiating the extension which is explicitly foreseen by Article 50(3). This would avoid the need for elections even where the UK, as a result of an agreed extension to Article 50, remains a member of the EU after June 2019. This idea would certainly increase the available political options. At present, the EU does not accept this premise but others are beginning to suggest something along similar lines – including the British Advocate General Eleanor Sharpston.

It remains possible for the UK to unilaterally withdraw (or revoke) the notification made pursuant to Article 50. An Act of Parliament would repeal the EU (Notification of Withdrawal) Act 2017, and the EU must be duly notified. The Wightman decision of the ECJ makes clear that the UK can do this independently and unilaterally, without the agreement of the EU, provided the notification is unequivocal and unconditional. Mrs May has consistently said she will not do it. But the law allows it, and it is still available as a parliamentary option.

Barnard & Peers: chapter 27
Photo credit: WWF EU

Summary of European Parliament legal service opinion on Brexit and EP elections
(on file with blog editor Steve Peers)

In September 2017 (before the European Council adopted its decision on allocation of EP seats) the EP legal service gave its opinion on two questions: (a) could the European Council adopt a decision on allocation of EP seats not including the UK, if the UK was still a Member State when the decision was adopted? and (b) if the UK has not left before the EP elections, can the EP meet without the UK seats?

On point (a), the legal service said that the European Council could allocate seats to 27 Member States only, given that the UK was due to leave on 29 March 2019. However, it could also take account of the scenario if the UK was still a Member State, due to extension of membership, for instance. In practice, this is what the European Council did, on a proposal from the European Parliament (which also needed to consent to the decision).

On point (b), the legal service says that as long as the UK is a member of the EU when the elections to the European Parliament are held, the UK must hold EP elections. However, in the event that the UK failed to meet its obligations, the EP could still meet validly.

Tuesday, 12 March 2019

The second vote against the withdrawal agreement: what next?

Professor Steve Peers, University of Essex


The second attempt to approve the withdrawal agreement has been defeated again in the House of Commons. What were the main legal issues in this second attempt – and what is the way forward, if any?


MPs were asked to vote on five documents:

a)      The Withdrawal Agreement, as agreed in November, which has not been changed (see my overview of the agreement here)
b)      The non-binding Political Declaration on the future relationship with the EU, which has not been changed (see my detailed annotation of the declaration here)
c)      A new Instrument relating to the Withdrawal Agreement, which claims to be legally binding; it is based on a previous exchange of letters
d)      A new, non-binding Joint Statement supplementing the Political Declaration; and
e)      A unilateral declaration by the UK on the issues.

Assessing the new texts in ascending order of importance, the Joint Statement on the Political Declaration is mainly about the timing of future talks, an issue which was addressed in the Political Declaration already in some detail. It is useful that the Commission commits to proposing provisional application of future post-Brexit EU/UK treaties, to speed up their application pending national ratification if needed, but not really surprising as this is common EU practice.

There’s a potentially important point on the future UK legal framework:

5. Fourth, and in the context of open and fair competition, the Union notes the United Kingdom’s intention to ensure that its social and employment standards and its environmental standards do not regress from those in place at the end of the transition period, and to provide its Parliament the opportunity to consider future changes in Union law in these areas.

However, a unilateral intention is not an international law guarantee, and the possibility to consider future EU legislation is a weak level of commitment. It also leaves out the impact of future CJEU case law. On this issue – and on the prospect of a future customs union – the UK government might obtain some Labour party support for the withdrawal agreement if it went further. However, going further on the prospect of a future customs union would split the Conservative party.

In any event, the political declaration, on top of its non-binding status, is vague or non-committal about a number of key aspects of the future relationship. It could be revised along the lines of my suggested amendments in my annotation, to provide for firmer and more precise commitments.

The unilateral UK government statement is not unusual as such, since there are often unilateral declarations attached to treaties. It might have some value as regards interpreting the treaty, as the Attorney-General’s advice points out. But in any event, on a close reading it does not assert very much substantively.

The first paragraph is an expression of intention about quickly starting talks on the future relationship. This matches the commitments in the political declaration on the future partnership. The second paragraph simply reiterates the withdrawal agreement text that the Northern Ireland backstop is not intended to be permanent. In this context, the third paragraph states the UK’s view that if the EU acts in bad faith when negotiating a replacement for the backstop, the UK could bring a claim under the dispute settlement provisions of the withdrawal agreement that could lead to the disapplication of the backstop. In any event, the UK will avoid a hard border and comply with its obligations under the Good Friday Agreement.

This claim simply reiterates the UK’s capacity to ask the arbitrators under the withdrawal agreement to rule on the alleged bad faith by the EU, and to exercise the remedy of disapplication of parts of the treaty that would potentially be allowed under the agreement in the event that it won its case (and assuming that the arbitrators did not find, upon request by the EU, that such a response by the UK was disproportionate). This claim does not alter the legal position however: the UK was always able to make such a claim under the withdrawal agreement, and the unilateral declaration does not mean that the arbitrators would be obliged to agree with the UK that bad faith existed or that the disapplication of the backstop was proportionate.

Finally, as for the joint instrument, it is legally binding based on the parties’ express agreement to this effect.  Indeed, as the text points out, under Article 31 of the Vienna Convention on the Law of Treaties the parties can agree additional texts supplementing a treaty, which are influential when interpreting that treaty. There’s a recent example of such a practice as regards the similar joint instrument agreed between the EU and Canada, which is already referred to by an Advocate-General of the CJEU.

But the issue is the substance of the joint instrument. Part A simply spells out some details of the mechanics of the negotiations aimed to replace the backstop. It adds, similarly to the UK unilateral declaration, that it would be in bad faith to act to attempt to keep the backstop applicable indefinitely. The dispute settlement process could be invoked in such a case, with the possibility of unilateral suspension of part of the agreement in the event of a breach.

Part B sets out safeguards for Northern Ireland.  The withdrawal agreement does not alter the Good Friday Agreement, including the role of the devolved Northern Ireland government. It clarifies that not all new EU measures will be added automatically to the Protocol. Finally, Part C notes that the future relationship between the UK and the EU need not have the same territorial scope as the withdrawal agreement.

The instrument therefore confirms the interpretation of certain potentially arguable aspects of the withdrawal agreement, in particular whether the claim of bad faith regarding negotiation of future treaties is justiciable before the agreement’s dispute settlement system. However, as the Attorney-General and others have noted (see Michael Dougan on this blog, and David Anderson and others), this does not amount to a unilateral right to exit the backstop by the UK, as some would wish to see. As a result, the vote was lost.

What next?

The Commons is due to vote on a no deal outcome and on a request for an extension. Some believe that an election or another referendum is possible (both would require an extension of UK membership; the latter would entail an extension of membership long enough to require UK participation in the European Parliament elections in late May, according to the Commission President). An election would not necessarily provide a decisive result.

It’s impossible to predict developments, but several key points should be emphasised. First of all, Remainers should keep in mind that a vote against the withdrawal agreement is not a ‘vote to stop Brexit’. Only revocation of the notification of withdrawal would do that. If there is insufficient support for revocation by the Prime Minister/Parliament or to hold another referendum, then Brexit will take place. Indeed, in that scenario a vote against the withdrawal agreement is actually a vote for no deal.

Secondly, a vote against no deal does not stop a no deal outcome happening. It’s politically relevant, but legally irrelevant. No deal is the default outcome. It will happen unless a withdrawal agreement is approved or the notification is revoked.

Thirdly, an extension delays a no deal outcome, but is not a resolution in itself. The same basic choices between no deal, a withdrawal agreement and revocation will still exist, but at a later date.

Barring a spectacular U-turn by the EU, in my view the most obvious landing zone for a package which the Commons might support is set out above: a future customs union with additional workers’ rights protections, set out slightly more precisely as the outcome in the political declaration. This is only achievable on the basis of Remainers accepting that Brexit is going to happen in the absence of support to overturn it, along with either the Conservative party splitting or a Labour government following an election. Whether any of these outcomes is plausible remains to be seen.

Barnard & Peers: chapter 27
Photo credit:

Briefing paper: Legal Analysis of the Strasbourg Deal of March 11 2019

Professor Michael Dougan, University of Liverpool, 12 March 2019

Summary: The legal form of the “Instrument relating to the Withdrawal Agreement” and / or the “Joint Statement supplementing the Political Declaration” is of little importance.  The real question is whether the new measures make any meaningful changes to the withdrawal package which was politically endorsed in November 2018 and now awaits approval in the Commons. 

The Instrument largely restates existing provisions of the Withdrawal Agreement without making any appreciable additions or changes.  In particular: the “backstop” is still capable of being activated and of remaining operational on a potentially indefinite basis, unless and until the EU and UK agree to its amendment, replacement or removal.  There is still no legally binding or enforceable time limit on the “backstop”.  There is still no mechanism by which the UK is entitled unilaterally to terminate the “backstop”.  The idea mooted in the Instrument, that the UK could suspend operation of the “backstop” in retaliation for the EU being found in breach of its duty to negotiate in good faith / use best endeavours, is not new.  In the real world, such a prospect should be considered almost entirely theoretical, if not altogether fanciful. 

The Joint Statement seeks to flesh out the Political Declaration, which is itself neither legally binding nor legally enforceable.  The new provisions are almost entirely about the more detailed process for launching and conducting the future EU-UK negotiations.  They offer no meaningful guarantees about the timescales or indeed outcomes of those negotiations.

As for the Prime Minister’s suggestion of a Unilateral Declaration reserving the UK’s ability to disapply the “backstop” in certain circumstances, apparently regardless of its obligations under the Withdrawal Agreement: it seems remarkable for the Government openly to threaten to breach an international treaty even before it has been approved and ratified.  In reality, one might again argue that such a threat rings rather hollow, particularly given the potential adverse implications for Northern Ireland.  But it still sits ill with the aspirations and reputation of “Global Britain” for the Government to adopt such a cavalier attitude towards respect for and compliance with international law.   


The Prime Minister’s statement in Strasbourg on 11 March 2019 focuses largely on relatively superficial issues about the legal form of the “Instrument relating to the Withdrawal Agreement” and / or the “Joint Statement supplementing the Political Declaration”; rather than on the more important question of their legal substance, i.e. their actual impact upon the terms of the existing withdrawal package and their capacity for effective legal enforcement by the parties. 

In reality, the legal form of these documents is not especially significant.  They can be described in various ways as “having legal force” or having “binding character” etc.  But that is of little consequence, if the substantive content of the documents adds / changes nothing to / of what exists already in the withdrawal package; of if they contain promises / obligations which are incapable of effective legal enforcement between the EU and the UK. 

The real question is therefore: do the Instrument and / or Joint Statement make any meaningful changes to the withdrawal package which was politically endorsed in November 2018 and now awaits approval from the House of Commons?

The Withdrawal Agreement: Potential Impact of the Instrument

Much of the text of the Instrument simply recalls / reiterates the existing provisions of the Withdrawal Agreement (as supplemented by subsequent documents such as the UK Government Commitments to Northern Ireland and its Integral Place in the United Kingdom (9 January 2019) and the Exchange of Letters between the UK Prime Minister and the Presidents of the European Council and the European Commission (14 January 2019)).  Only the following points are worth further comment.

In paragraphs A.5-A.11, the Parties set out more details about how to pursue their common aspiration to replace the existing “backstop” with alternative arrangements as soon as possible, e.g. as regards the establishment of indicative timescales, the exploration of technological solutions, periodic review of progress etc.  However, those more detailed provisions in no way alter the underlying obligations contained in the withdrawal package in general and the “backstop” provisions in particular.  Moreover, due to their essentially aspirational nature, those more detailed provisions are incapable of effective legal enforcement so as to alter the substantive terms of the existing “backstop”: a mere promise to try to negotiate so as successfully to deliver a vague, uncertain and contingent future outcome is not capable of being enforced so as to compel either party actually to deliver that vague, uncertain and contingent outcome in the future.

In short: under the Withdrawal Agreement, even taking into account the contents of the Instrument, the backstop is still capable of being activated and of remaining operational on a potentially indefinite basis, subject to mutual agreement between the parties for its amendment, replacement or removal.  There is no legally binding or enforceable time limit.  There is no mechanism by which the UK is entitled unilaterally to terminate the backstop.

The Instrument effectively acknowledges that underlying reality, in its discussion of compliance with / enforcement of the parties’ commitments to seek to replace the existing “backstop” with alternative arrangements. 

In paragraph A.4, the Parties give an illustrative example of behaviour that should be considered a breach of the obligation to act in good faith / use best endeavours: a systematic refusal to take into consideration adverse proposals or interests.  That illustrative example is rather far-fetched: international actors generally do not behave overtly in such extreme ways.  In the real world, it would be very difficult to prove a breach of the obligation to act in good faith / use best endeavours on any such basis: “taking X into consideration” is a relatively low threshold to satisfy, especially since it does not require the relevant party to alter its subsequent views, preferences, decisions or behaviours in any appreciable manner.  In any case, paragraph A.4 remains merely an illustrative example and does not in any way change the substance of the relevant provisions of the withdrawal package.

In paragraph A.12, the Parties give another illustrative example of behaviour that should be considered a breach of the obligation to act in good faith / use best endeavours: to act with the objective of applying the “backstop” indefinitely.  Again, in the real world, it would surely be very difficult to prove a breach of the obligation to act in good faith / use best endeavours on any such basis: it would be relatively easy and convincing for one party to argue that the “backstop” must remain in place for the foreseeable future, not because that is the party’s “objective” per se, but rather because that is the party’s reasonable assessment of the viability of proposals for alternative arrangements that could credibly replace the “backstop”.  In any case, paragraph A.12 also remains merely an illustrative example and does not in any way effect the substance of the relevant provisions of the withdrawal package.

Under paragraph A.14, the Parties recall that – in the event that a dispute arises over compliance with the duty to act in good faith / use best endeavours and that such a dispute eventually leads to an arbitration panel finding of persistent default – the withdrawal agreement ultimately allows for the aggrieved party to adopt temporary remedies, which may remain in place until compliance with the duty to act in good faith / use best endeavours is restored.  Such temporary remedies could include suspension of obligations arising under the “backstop”. 

On one level, paragraph A.14 is (once again) merely a restatement of what was already obvious from the terms of the existing withdrawal package.  On another level, however, paragraph A.14 paints a scenario that can only be described as either deeply unconvincing or deeply worrying.  If the UK were to suspend the “backstop” in such circumstances, i.e. without any adequate alternative arrangements already in place, it could lead directly to the erection of a customs and regulatory frontier between Northern Ireland and the Republic of Ireland.  Besides its obvious economic, social and political difficulties, such a course of action would also be in direct contradiction of the UK’s longstanding promise (e.g. as contained in the Joint Report from December 2017) to prevent the emergence of a “hard border” under any circumstances.  In any event, a UK proposal to suspend operation of the “backstop” in such circumstances would have to be proportionate as well as temporary: given the nebulous character of the duty to act in good faith / use best endeavours, and the relative ease with which a party should be able to demonstrate that it had returned to full compliance with that duty, paragraph A.14 really does seem to contain a rather empty threat.

The Political Declaration: Potential Impact of the Joint Statement

Much of the text of the Joint Statement simply recalls / reiterates the existing provisions of the Political Declaration (as supplemented by subsequent documents such as the UK Government Commitments to Northern Ireland and its Integral Place in the United Kingdom (9 January 2019) and the Exchange of Letters between the UK Prime Minister and the Presidents of the European Council and the European Commission (14 January 2019)).

By and large, the text merely describes in more detail how the Parties plan to pursue their common aspiration for negotiating a new future relationship, e.g. as regards the establishment of thematic priorities and indicative timescales, the pursuit of parallel negotiating strands, the relationship with more specific negotiations aimed at replacing the existing “backstop” etc. 

Of course, neither the Political Declaration nor the Joint Statement are legally enforceable texts.  But in any case, the additional provisions contained in the Joint Statement are almost entirely about the process of conducting future negotiations.  They do not and could not offer any guarantees about the outcomes of those negotiations: whether any agreement on the future relationship will be reached at all, whether such agreement might be concluded within any particular timescale, whether the agreement would be approved and ratified by the competent institutions on each side, let alone the substantive content of any final agreement on the future relationship. 

The only provision which touches upon the substance of the principles intended to govern negotiations for the future relationship is paragraph 5: the EU notes the UK’s intention to ensure that the latter’s social, employment and environmental standards do not regress from those in place at the end of the transitional period and to provide Parliament with the opportunity to consider future changes in Union law in these areas.  Even setting aside the limited significance / value of those commitments as a matter of domestic UK constitutional law, paragraph 5 is almost entirely inconsequential as regards its substantive relevance to the legal status or enforceable content of the existing withdrawal package.

A suggested “Unilateral Declaration” by the UK

The Prime Minister’s statement in Strasbourg provides that the UK will make a Unilateral Declaration that, if the “backstop” comes into use and discussions on the future relationship break down, so that there is no prospect of subsequent agreement, the UK takes the position that there would be nothing to prevent the UK instigating measures that would ultimately disapply the “backstop”. 

On one level, that statement is entirely banal: of course, if the UK were determined to adopt internal legal measures to disapply the “backstop”, there is nothing that any external actor could do to prevent the UK’s domestic institutions from so acting.  The EU could have recourse to whatever avenues and remedies are available under international law, e.g. dispute settlement under the Withdrawal Agreement – but the EU cannot “prevent” the UK from acting however the UK pleases within the UK’s own internal constitutional sphere.

On another level, however, the Prime Minister’s statement is quite remarkable: the UK is openly and blatantly threatening to breach its clear obligations under a legally binding international agreement, even before that agreement has been finally approved and ratified.  In reality, one might again argue that this threat rings rather hollow: if the UK were unilaterally to disapply the “backstop” in such circumstances, without any adequate alternative arrangements already in place, it could once more lead directly to the erection of a customs and regulatory frontier between Northern Ireland and the Republic of Ireland.  Even if the UK were unconcerned about the international legal repercussions under the Withdrawal Agreement or indeed the Joint Report, the UK would still have to manage the inevitable economic, social and political problems such a course of action would entail for Northern Ireland and no doubt beyond. 

In any event, it sits rather ill with the ambition and reputation of “Global Britain” for the Government to adopt such a proudly cavalier attitude towards respect for and compliance with international law.    

Barnard & Peers: chapter 27
Photo credit: Bloomberg

Thursday, 28 February 2019

Prison Break? The CJEU rules on clashing EU and national law obligations on detention time limits

Joske Graat, PhD candidate, Utrecht University

If EU law provides for a longer period of detention of a person subject to a European Arrest Warrant, and national law provides for a shorter period, which prevails? If national law is vague about the issue, is that a violation of the ECHR (and therefore also the EU Charter of Fundamental Rights), which provides that detention needs to be ‘lawful’, and so relevant national laws must be precise?

In the recent TC judgment the Court of Justice of the European Union (CJEU) provided an answer to the preliminary question posed by the Amsterdam District Court in July 2018, which raised these issues. The preliminary ruling was supposed to aid in resolving the devilish dilemma in which the Amsterdam District Court and Amsterdam Court of Appeal currently find themselves. As described in an earlier contribution, these national courts are stuck between national rules and EU law obligations regarding detention pending surrender proceedings. Article 22 of the Dutch Surrender Act (SA) transposes Article 12 of the Framework Decision on the European Arrest Warrant (FDEAW) into an automatic and absolute obligation to release the requested person if no decision on the execution of the EAW is made after 90 days have passed.

In other words, the decision to extend the time to rule on the execution of an EAW after 90-days have lapsed needs to be accompanied by the decision to (provisionally) release the requested person. The application of this national rule became problematic after the Lanigan judgment wherein it was established that national judicial authorities are not obliged to provisionally release the requested person after 90 days as this may threaten the effectiveness of the FDEAW. To avoid a violation of the obligation in article 17 FDEAW, which requires that the substantive conditions for surrender are guaranteed at all times, both the Amsterdam District Court and the Amsterdam Court of Appeal adopted – on the basis of different legal reasonings – a broad interpretation of article 22 SA. They concluded that article 22 SA not only contains the power to extend the decision term after 90-days, but also includes the competence to suspend the 90-day term before it has lapsed. In case of the latter, the 90-day term is barred, which may result in a de facto detention duration beyond 90 days. In its request for a preliminary ruling the Amsterdam District Court asked whether this new interpretation violates legal certainty as protected by Article 6 Charter of Fundamental Rights of the European Union (CFR), which lays down the right to liberty, and which corresponds to Article 5 ECHR.

In its preliminary ruling the CJEU first determines that the FDEAW precludes the unconditional obligation to release after 90 days as it undermines the effectiveness of the FDEAW. As we will see, this determination plays an important role in relation to the second conclusion, which is that Article 22 SA and its current interpretation by the national courts does not constitute a sufficiently clear and predictable legal basis for continued detention after 90 days. In my view the legal reasoning underlying this conclusion gives rise to certain questions and does in the end not provide the necessary solution to the dilemma in which the national courts find themselves. 

The CJEU bases its violation of Article 6 CFR on two main arguments; the variation in the legal reasonings of the national courts that may result in different periods of continued detention and the fact that the current national case law does not ensure full conformity with the FDEAW.  With regard to the second argument it is, in my view, first of all interesting that the CJEU does not only consider the clarity and predictability of Article 22 SA, but of the relevant provisions in the FDEAW, as interpreted in Lanigan, as well. This gives rise to the question in what way the individual is concerned with the clarity of the rules in the FDEAW, as it is an instrument that imposes obligations on the member states, is not directly applicable and does not have direct effect? Does this mean that an individual should be able to understand the rules on the duration of detention as they follow from the FDEAW interpreted in the case law of the CJEU? Absent legal counsel this seems like an almost impossible task. 

Secondly, in the context of the second argument the CJEU concludes that ensuring clear and predictable rules on the duration of detention requires a broader application of the power to suspend the decision term by the national courts. The CJEU firmly reminds the national courts of their obligation to do all within their jurisdiction to interpret Article 22 SA in conformity with the FDEAW as explained in Lanigan. The current interpretation fails in this regard as it only allows for a suspension in three particular situations, including the referral or awaiting of a preliminary ruling and when the issuing state is requested to provide information contradicting a possible violation of article 4 or 47 CFR. However, when the preliminary ruling is made or information is provided by the issuing state the suspension is lifted, and the 90-days term once again applies. According to the CJEU, in order to ensure full conformity with the FDEAW, national law should allow for a suspension of the decision term in all cases in which a serious risk of absconding cannot be sufficiently limited by non-custodial measures.

An obligation to (provisionally) release only arises when after balancing the factors laid down in Lanigan continued detention becomes excessive. This message of the CJEU brings the national courts, in my opinion, back to square one. Despite the CJEU’s firm emphasis on the duty of conform interpretation (indirect effect) and the fact that a suspension of the decision terms is not prohibited by the FDEAW, it is still for the national courts to determine whether a conform interpretation is in fact possible. In this light, I would argue that interpreting Article 22 SA in full conformity with the FDEAW would clash with the intent of the Dutch legislator to establish an unconditional obligation to release after 90 days and would be contra legem. Suspending a decision means in common parlance ‘halting or stopping’ an ongoing term which has not yet lapsed, whereas extending means ‘adding’ time to a term which has already lapsed. Hence a fully conform interpretation of Article 22 SA would require a contra legem explanation of this provision, which would in itself not contribute to the protection of an individual’s legal certainty. In other words, the national courts are still stuck between EU obligations and national rules whose wording do not allow a conform interpretation. As the CJEU did not answer the question whether the primacy rule applies to the FDEAW as well, this preliminary ruling does not provide the necessary solution for the dilemma of the national courts. However, this may change when the CJEU answers this question in the Poplawski II case which is still pending (Opinion of the AG November 27, 2018).

It can be concluded that the CJEU seems to use the TC case to send a message of its own. Despite the clear fundamental rights angle of the initially referred question, the judgment is, in my view, predominantly a slap on the wrist of the Dutch legislator and the national courts for not ensuring full compatibility with EU law. In addition, the dilemma in which the national courts find themselves is not solved. This reaffirms the conclusion made in my previous contribution, which is that the Dutch legislator needs to step in to solve this situation as it is the only public authority with the necessary means to do so. To end on a more positive note, the strong focus on the incompatibility of national law with EU law might just be the necessary push for the Dutch legislator to come to the rescue of the national courts by adapting article 22 SA in conformity with the FDEAW.

Barnard & Peers: chapter 25
JHA4: chapter II:3
Photo credit:

Monday, 25 February 2019

The relationship between the EU Charter of Fundamental Rights and Directives in horizontal situations

L.S. Rossi, Judge of the Court of Justice of the European Union

The Kücükdeveci ambiguity: “derivative” horizontal direct effects for directives?

According to Article 6(1) TEU, the Charter of Fundamental Rights of the European Union (hereinafter, the “Charter” or “CFR”) has the same legal value as the Treaty. After the entry into force of Treaty of Lisbon, the question therefore arises as to whether the ECJ case-law on the direct effects of EU primary law provisions, dating back to Van Gend en Loos, may be extended also to the rights contained in the Charter.

According to a well-established jurisprudence of the Court, which has recently been reaffirmed by the ECJ in its Hein ruling (paras 48-52), the precondition for such direct effects to arise is the existence of an actual conflict of EU and national norms. In other words, direct effects may come into play only when it is impossible to interpret national legislation at issue in a manner consistent with the Charter. In this case, the direct effects of (some of) the Charter’s rights could be inferred from a contrario interpretation of Article 52(5) CFR, as opposed to those provisions of the Charter containing principles, which (according to Article 52(5)) may only be invoked in relations with the implementing European Union or national legislation.

Indeed, the Court already clarified that some provisions of the Charter that have a prescriptive content should in principle have direct effect in vertical situations (ie against State organs). This is, for example, the case of the principles of equal treatment and non-discrimination under Articles 20 and 21 CFR (cf. Glatzel C-356/12 para 43 and Milkova C-406/15, paras 55 and 64).

However, the question of whether the Charter’s rights could also have horizontal direct effects (ie against private parties) has, until recently, remained unresolved. An argument in favour of such effects could, after all, be drawn from the preamble of the Charter, which states that the enjoyment of the rights reaffirmed by the CFR “entails responsibilities and duties with regard to other persons, to the human community and to future generations”.

The ECJ seemed initially to acknowledge a sort of “derivative” horizontal direct effect to some provisions of the Charter, mediated by the directives which give them concrete effect, and anchored to the general principles of EU law or to the constitutional traditions common to the Member States (see, for instance, as for the principle of non-discrimination on grounds of age, Dansk Industri, C‑441/14, paras 22 and 27, reaffirming Mangold, C-144/04, paras 75-78 and Kücükdeveci, C‑555/07, paras 50-51).

As AG Bot has pointed out in his Opinion in Bauer (C‑569/16 and C‑570/16, para 75), this has resulted in an ambiguity, in that the Kücükdeveci case-law could have been construed as recognising to directives giving concrete expression to a general principle codified by the Charter the capacity to be invoked in disputes between private parties. This was in open contradiction with the settled ECJ case-law according to which even a clear, precise and unconditional provision of a directive conferring rights or imposing obligations on individuals, while giving rise to an obligation of consistent interpretation on the part of the national court, cannot of itself be relied upon in disputes between private parties, including for the purpose of setting aside conflicting national legislation (see Faccini Dori, C-91/92, paras 20 and 26, Pfeiffer, C-397/01 to C-403/01, para 109 and Dominguez, C‑282/10, para 42).

From AMS to Max-Planck: the horizontal direct effects of the Charter

It was only very recently that the ECJ case-law shed some light on the unclear legal relationship between the rights contained in the Charter and the directives on which those rights are based and by which they are given concrete expression when invoked in horizontal disputes.

The starting point of the Court’s line of reasoning is represented by the Association de mediation sociale (C‑176/12, paras 45-49). The Court ruled out the possibility to infer from the wording of Article 27 of the Charter, alone and in conjunction with directive 2002/14, a directly applicable rule of law capable of being invoked in a dispute in order to disapply a conflicting national provision. That conclusion was reached on the ground that it was “clear from the wording of Article 27 of the Charter” – which subordinates the workers’ right to information and consultation within the undertaking to the cases and the conditions provided for by EU law and national laws and practice – “that, for this article to be fully effective, it must be given more specific expression in European Union or national law”. In so doing, the ECJ also made clear that it is only the primary law provision and not the directive concretizing it which may have horizontal direct effect, so that the latter “cannot confer on [the former] the qualities needed for it to be relied on directly in a dispute between individuals” (cf. AG Bot in Bauer, point 74).

Nevertheless, AMS left open the question of the possible direct effects of other provisions of the Charter that, unlike Article 27 CFR, make no reference to the respect of “the conditions provided for by national laws and practices”.

In a series of judgments inaugurated by Egenberger in April 2018 (C-414/16, paras 76-79) and followed by IR (C-68/17, paras 69-70), Hein (C-385/17, paras 76-78) and Cresco Investigation (C-193/17, paras 76 and 77), the ECJ has then admitted the possibility of relying on certain rights conferred by the Charter in dispute between private parties. The provisions of the Charter concerned were, precisely, the prohibition of all discrimination on grounds of religion or belief under Article 21(1) CFR, as well as the right to effective judicial protection under Article 47 TFEU. These provisions were deemed to be “mandatory as a general principle of EU law” in the same way as the “the various provisions of the founding Treaties prohibiting discrimination on various grounds”, “ and “sufficient in itself to concern on individuals a rights which they may rely on as such in disputes between them in a field covered by EU law”.

A final and decisive step forward has been marked by the Bauer (C-569/16 and C-570/16, paras 84-86) and Max-Planck (C-684/16, paras 73-75) rulings of November 2018, in which the Court has drawn the same conclusions with respect to the right to a period of paid annual leave affirmed by Article 31(2) CFR, which is not only a social right contained in title IV of the Charter on ‘solidarity’ but is also considered by the Court itself as an “essential principle of EU social law”.

In particular, the Court held that “by providing, in mandatory terms, that ‘every worker’ has ‘the right’ ‘to an annual period of paid leave’ without referring in particular in that regard — like, for example, Article 27 of the Charter […] — to the ‘cases’ and ‘conditions provided for by Union law and national laws and practices’, Article 31(2) of the Charter, reflects the essential principle of EU social law from which there may be derogations only in compliance with the strict conditions laid down in Article 52(1) of the Charter and, in particular, the fundamental right to paid annual leave”. This right “is thus, as regards its very existence, both mandatory and unconditional in nature, the unconditional nature not needing to be given concrete expression by the provisions of EU or national law, which are only required to specify the exact duration of annual leave and, where appropriate, certain conditions for the exercise of that right. It follows that that provision is sufficient in itself to confer on workers a right that they may actually rely on in disputes between them and their employer in a field covered by EU law and therefore falling within the scope of the Charter”.

These judgments appear to have developed a general test to be applied to all the rights protected by the Charter, a test similar – albeit with a different wordings – to that initially set out by the same Court for determining the direct effects of the provision of the Treaty (van Gend en Loos, 26/62, p. 13) and then of directives (van Duyn, 41/74, paras 12-13). This test is based on a twofold condition, according to which the provisions of the Charter are liable to have – not only vertical, but also horizontal – direct effects where they are both (i) unconditional in nature, and (ii) mandatory.

The first condition requires the provisions of the Charter to be “self-sufficient” (cf. AG Bot in Bauer, point 80 and Lenaerts), in that they must not need “to be given concrete expression by the provisions of EU or national law”. The Court has nonetheless stated that the secondary law may specify certain characteristics of the right concerned, such as its duration, and lay down “certain conditions for the exercise of that right” (see Max-Planck, para 74 and Bauer, para 85).

It follows that the numerous provisions of the Charter which refer to rights “as provided for in national laws and practice” are, in principle, deprived of such horizontal direct effect, as the Court has made it clear in AMS (paras 44-45) and confirmed in Max-Planck (para 73) and Bauer (para 84). Although the ECJ has made no explicit reference to it, this can be viewed as an expression of Article 52(6) CFR, according to which “full account shall be taken of national laws and practices as specified in this Charter” (as to the “horizontal reservations” of the Charter, cf. my article in GLJ).

Reference to national laws and practices is made not only by a series of provisions of the Charter concerning social rights, including articles 27 (workers' right to information and consultation within the undertaking), 28 (right of collective bargaining and action), 30 (protection in the event of unjustified dismissal), 34 (entitlement to social security and social assistance), 35 (right of access to preventive health care and the right to benefit from medical treatment), 36 (access to services of general economic interest), but also by articles 9 (right to marry and right to found a family), 10(2) (right to conscientious objection), 14 (freedom to found educational establishments) and 16 (freedom to conduct a business).

The first condition of the Max-Planck test a fortiori rules out also those Charters’ provisions which, by laying down principles to be implemented by legislative and executive acts taken by EU institutions and Member States, are judicially cognisable only in the interpretation of such acts and in the ruling on their legality, pursuant to Article 52(5) CFR. According to the Explanations relating to the Charter, this is, in particular, the case of Articles 25, 26 and 37, while other provisions of the Charter, such as Articles 23, 33 and 34, “may contain both elements of a right and of a principle”.
As regards the second condition – the mandatory nature of the provisions of the Charter – it appears not only to refer to the absolute nature of the right at issue, from which there can be no derogation, but also to incorporate the traditional criteria of clarity and precision required for having direct effects (see Garlsson, paras 65-66 and cited case-law, with regards to the (vertical) direct effect of Article 50 CFR). In so doing, the Court could have implicitly ruled out the horizontal direct effects of those “rights recognised by this Charter for which provision is made in the Treaties” which, in light of Article 52(2) CFR, “shall be exercised under the conditions and within the limits defined by those Treaties.”

Finally, the fact that certain Charter’s provisions may be capable of having horizontal direct effects should not overlook the existence of general constraints to legal effect of the Charter, flowing from the ECJ case-law and the rules governing the interpretation and application of the Charter laid down by Articles 51 and 52 CFR.

The Directives as “pull factor” allowing (horizontal) direct effects of the Charter under Article 51 CFR

As far as Article 51 CFR is concerned, it should first be noted that in its latest case-law the Court has addressed the issue of whether, by limiting the applicability of the Charter to EU institutions and the Member States, the first paragraph of this article could preclude the Charter from being invoked in disputes between private parties.

In Max-Planck (paras 76-79) and Bauer (para 87-90) the Court has held that “although Article 51(1) of the Charter states that the provisions thereof are addressed to the institutions, bodies, offices and agencies of the European Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing EU law, Article 51(1) does not, however, address the question whether those individuals may, where appropriate, be directly required to comply with certain provisions of the Charter and cannot, accordingly, be interpreted as meaning that it would systematically preclude such a possibility”. Based on Egenberger, the Court has acknowledged that “the fact that certain provisions of primary law are addressed principally to the Member States does not preclude their application to relations between individuals”. Moreover, as regards, more specifically, Article 31(2) CFR, the Court emphasised that “the right of every worker to paid annual leave entails, by its very nature, a corresponding obligation on the employer”.

Secondly, the Court has acknowledged in Max-Planck that, although Article 51(1) CFR does not “systematically preclude” that private individuals may be directly required to comply with certain provisions of the Charter, this is without prejudice to the precondition for invoking such a horizontal direct effect, that is, that the legal situation shall fall within the scope of the Charter. According to the same Article 51 CFR as interpreted by the settled ECJ case-law, this is the case when the relevant legal situations are governed by EU law and the national legislation falls within the scope of Union law (see Åkerberg Fransson, C‑617/10, paras 19-21 and AGET Iraklis, C‑201/15, paras 62-64), which cannot be extended by the Charter itself.

The recent ECJ case-law shows how directives and the Charter, notably in horizontal situations, mutually benefit from the respective legal effects in this respect.

When certain rights contained in the Charter are based on and materialised by directives, it is by means of the same directives that the specific legal situation falls within the scope of application of EU law and therefore enters into the orbit of the Charter.
The Charter’s rights, in turn, – insofar as they are applicable and fulfil the relevant conditions laid down by the ECJ case-law – may be invoked in disputes between private parties concerning national provisions implementing or derogating from the corresponding secondary law. This applies also to those rights which were founded on international instruments and in the constitutional traditions common to the Member States and are now enshrined in provisions of the Charter which are ultimately based on directives, even if the latter cannot of itself enjoy such direct effect.

In other words, the Charter cannot confer horizontal direct effects to directives, since the latter, by their very nature, are unable to have such effects. But, as was the case in Max-Planck, the existence of a directive can attract a horizontal situation in the scope of the Charter.

In the synergic functioning of Charter and directives, special attention should be paid not to go beyond their respective scope of application.

Indeed, while the fact that directives and the Charter reinforce each other should be welcomed, there is an inherent risk that this two-way legal relationship may lead to a circular reasoning. This risk could materialise in two situations.

Firstly, as evidenced by the Explanations relating to the Charter, certain rights contained therein are “based” or draws on directives, which in turn concretise these rights. This is notably the case of articles 8 (protection of personal data), 11(2) (freedom of expression and information), 23(1) (equality between women and men), 31 (fair and just working conditions), 32 (protection of child labour and protection of young people at work), 33(2) (family and professional life), but also of article 27 (workers’ right to information and consultation within the undertaking), referring to directives 2002/14/EC, 98/59/EC, 2001/23/EC and 94/45/EC among the “considerable Union acquis in the field” and article 30 (protection in the event of unjustified dismissal), which in addition to the European Social Charter also refers to directives 2001/23/EC and 80/987/EEC.

It is therefore clear that while directives can be assessed, interpreted and applied in the light of the Charter, the latter could not extend the scope of the former, in particular where its own scope is defined by those directives.

Secondly, a risk of circular reasoning may occur when the situations in which fundamental rights protected by the Charter are not covered in their entirety by the relevant directives and could therefore fall (partly) outside the scope of EU law. This holds true especially for minimum harmonization directives, where the higher standards of protection granted by the Charter cannot be invoked against conflicting national legislation which goes beyond the scope of application of the relevant directives.

In such cases, it should not be possible to extend the reach of the relevant directives beyond their scope in order to ensure the effectiveness of the fundamental right granted by the Charter (cf., along this line, Opinion of AG Pitruzzella in CCOO, points 36, 39, 51 and 95-96). In fact, applying by analogy the latter to situations which fall outside the scope of the former, could lead to circumvent Article 51(1) CFR. In order to avoid such a circular reasoning, it would seem appropriate to emphasised that the Charter can only apply (and therefore have horizontal direct effect) to situations which fall within the scope of EU law.
It is to be noted, however, that the Court has already pointed out in Milkova (C‑406/15, paras 52-54) that, when Member States are not required by a Directive to maintain or adopt a given measure but have discretion in that regard, the national legislation that may have been adopted falls within the scope of EU law, resulting in the Charter being applicable. The Court will be able to clarify this point in the cases C-609/17, TSN and C-610/17, AKT, currently pending before it.

Article 52(1) CFR: striking the balance between conflicting rights in horizontal situations

With regard to Article 52 CFR, its first paragraph enables Member States to introduce legislative limitations on the exercise of the rights recognised by the Charter, insofar as they respect the essence of those rights (see Bauer, para 84 and Max-Planck, para 73). According to the same provision, when evaluating these limitations in light of the principle of proportionality, national judges are called to assess whether they “are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others”.

Protecting the rights of other parties is even more a delicate issue in cases where the Charter is deemed to be applied in horizontal situation, and national judges are therefore called on to strike a balance between competing individual rights accordingly (cf. Egenberger, para 80). The question therefore arises as to which court should be competent to strike such a balance, which, in light of Article 52(1) CFR, could also result in possible limitations of the rights protected by the Charter.

When the different rights or interests at the stake are both covered by the Charter, the ECJ can be regarded as the best placed to balance them (see, among others, Sky Österreich, C‑283/11, paras 46-66 and AGET Iraklis, paras 70-104). In any other cases, it can be argued that it is the national court which is called to apply the allegedly directly effective right who is primarily responsible to strike this balance in concreto, after referring a preliminary question to the Court, where appropriate.

The intervention of the ECJ would be necessary not only to verify whether and to what extent the specific provisions of the Charter may have horizontal direct effects and to determine the obligations stemming from the Charter in the specific circumstances, but also to clarify what balance has been struck by the legislature between the competing interests involved in the directive(s) which gives concrete expression to the provision of the Charter at issue (see, in this sense, Egenberger, para 81).

The latest ECJ judgments in Hein and Cresco Investigation, however, indicate the Court’s intention to steer this balancing exercise itself.

In Hein (paras 51 and 61-62), the ECJ recalled that, in order to interpret national legislation in accordance with the Charter’s rights and before eventually disapplying it, national courts are under an “obligation to change established case-law, where necessary, if it is based on an interpretation of national law that is incompatible with the objectives of a directive”. National courts are also prohibited from protecting the legitimate expectation of the losing private party that the case-law of the highest national courts confirming the lawfulness of the contested national provisions will continue to apply, so as to avoid indirectly limiting the temporal effects of the ECJ interpretation.
As for Cresco Investigation (paras 79-86), in order to clarify the scope of the national courts’ obligation to guarantee individuals the legal protection afforded to employees under Article 21 CFR, the Court held that the referring court must not only set aside any discriminatory national legislation, but also apply to members of the disadvantaged group the same advantages as those enjoyed by persons within the favoured category. Furthermore, until measures reinstating equal treatment have been adopted by the national legislature, employers are under an obligation to ensure equal treatment among their employees and notably to recognize to those employees who are not members of any churches entitlement to a public holiday on Good Friday or the corresponding pay.

In cases like these, it seems likely that the national constitutional courts will enter into a debate with the domestic courts concerning the protection of the different rights at stake as well as the outcome of the balancing exercise, assessing the conflicting rights in light of the respective national Constitution: in the new scenario opened by the Max-Planck ruling, new questions of constitutional nature and value will emerge.

Barnard & Peers: chapter 6, chapter 9, chapter 20
Photo credit: The Dugger Law Firm, PLLC