Professor Steve Peers,
University of Essex*
*Text based on my presentation to the European Parliament, 1
February 2018
While attention during the Brexit
talks has been focussed on the two sides’ negotiation positions, and on the
measure of agreement reached so far (notably the December joint
report, discussed further here),
in the long term the most important text on EU and UK citizens’ acquired rights
after Brexit will be the withdrawal agreement itself – assuming it is agreed
and ratified. Once a draft withdrawal agreement is produced (which is
reportedly likely soon) we can offer a ‘running commentary’ on it, but in the
meantime here are some thoughts about what to look for.
First of all, there are a number
of substantive points which are
unclear or left for future discussion in the joint report. Most notably, the joint
technical note agreed in December refers to further discussion on: the
further free movement rights of UK citizens living in the EU27; the recognition
of post-Brexit qualifications; future healthcare arrangements (such as the EHIC
card for UK citizens who visit the EU after Brexit, and vice versa); lawyers
practicing under home state title; and posted workers.
The joint report is unclear as
regards the personal scope of the agreement, in particular those who have moved
to another Member State and returned to their Member State of nationality (for
instance, UK citizens who moved from the UK to Ireland and back, or Dutch
citizens who moved to the UK then back to the Netherlands), and those who have rights
based on EU citizenship as distinct from free movement (UK citizen children
with a non-EU parent; or EU27 citizens elected to local government before
Brexit day, and their UK counterparts in EU27 states).
Some crucial points are referred
to only vaguely. For instance, many UK commitments (waiving the obligation to
have CSI, or comprehensive sickness insurance, among others), are addressed by
cross-reference to a UK government document. But if this document is not made
legally binding, the UK’s commitments cannot be ensured. The UK quite rightly
wants commitments about its future relationship with the EU to be drawn up and
linked to the withdrawal agreement; the same should apply to future treatment
of EU27 citizens in the UK. In either case, such a legal link would respect the
obligation in Article 50 TEU to take account of the ‘future framework’ for
UK/EU relations. Furthermore, in light of questionable UK intentions regarding protection
of EU27 citizens’ personal data, the withdrawal agreement should contain
special safeguards ensuring the application of EU law on this issue.
Secondly, there are issues of enforcement. The joint report includes
agreement on issues relating to courts and the legal effect of the rules, but expressly
leaves open for further discussion the role of the ‘independent national
authority’ designed to form part of the process of securing EU27 citizens’ acquired
rights in the UK. It will have a role ‘monitoring’ those rights, but what does
this mean exactly?
There are three key issues here:
the body’s independence, powers and resources. Whatever powers it has, its
independence is crucial: this body should not be a sinecure for dodgy donors or
controversialist cabinet cronies (cf the botched
appointment of Toby Young to the university regulator). The appointees need both genuine expertise in
the field and detachment from the government. Perhaps the best way forward is to define the
required ‘independence’ by reference to the CJEU case
law on the very strong degree of independence required of data protection
authorities.
This brings us neatly to the
issue of powers. There are several possible models for the powers which such an
authority might wield. One is the EU Commission model, already copied for other
non-EU states by the EFTA Surveillance
Authority. Among its other tasks, the Commission can receive complaints
about botched application of EU law by Member States. It then enters into a
dialogue with them and, if it decides it is necessary and merited, brings an
infringement proceeding before the EU courts to determine if the complaint is
well-founded. If the Member State arguably fails to apply the first binding
judgment, the Commission can sue it again, asking the CJEU to impose a fine upon
that Member State to sanction it for prior and continuing non-compliance with the
first judgment. However, the Commission has political discretion as regards
this procedure: for instance, it has not pressed forward with a complaint that
the UK has wrongly applied the CSI requirement for EU27 citizens in the UK.
Another model is that of data
protection authorities (DPAs), whose current powers will be bolstered
by the new General Data Protection Regulation, which must be applied by May
this year. Among other powers, DPAs can not only receive complaints from
individuals but act on them directly, deciding if governments or private
companies have violated data protection law and ordering a remedy. If the complainant
thinks the DPA hasn’t acted properly on the complaint, he can challenge them in
court (for example, see Schrems
I). So can the government or company which is found by a DPA to have
breached data protection law (for example, see Google
Spain).
Furthermore, another possibility
is that of an ombudsman, who can hear complaints from individuals and enter
into dialogue with the authorities, but without powers to make decisions or
bring court challenges. A stronger variant of this is an equality or human rights
commission, which can in some cases go to court on behalf of an individual
complainant or seek more general judicial review of changes in national law. This
is quite similar to the EU Commission model, and indeed such bodies already
exist in the UK.
This latter possibility brings us
to the third issue – that of resources. There’s been a huge
cut in funding to and staffing of the UK’s Equality and Human Rights
Commission, so it could not adequately deal with an important new task like
defending the rights of EU27 citizens without these changes being partially
reversed, in particular allowing for the hiring of new staff with expertise in
this field.
These issues aren’t just relevant
to the protection of UK citizens’ rights in the EU27. The joint report assumes
that the Commission will monitor the rights of UK citizens in the EU27 in
conformity with EU law, but in practice the Commission rarely sues Member
States for their misapplication of EU treaties with non-EU countries, and as
noted already, the case law gives the Commission political discretion in this
area. The joint report expects the UK to change its law to ensure protection of
EU27 citizens’ acquired rights, and what’s sauce for the goose is sauce for the
gander. So the withdrawal agreement should also allow for judicial review of
Commission decisions on complaints by UK citizens about EU27 governments
applying the withdrawal agreement. This would not change the ‘essential character’
of the Commission’s powers (a rule stemming from CJEU external relations case
law), since similar review is possible as regards Commission decisions not
to pursue (for instance) state aid or competition law complaints.
Yet there’s another dimension to
the issue of enforcement. What if the complaints against the UK or an EU27
government fail in the courts, but there is still concern that the withdrawal
agreement is being breached? In that case the issue could be addressed pursuant
to the ‘governance’ provisions of the withdrawal agreement, which have yet to
be agreed. Whatever the mechanics of dispute settlement, however, the role of
the individual will be an issue. Will the individual have the right to make a
complaint to the EU Commission or the UK government about violation of the
treaty by the other side? (WTO law does allow companies to initiate comparable
complaints to governments about international trade rules). If so, what happens
next? Can a refusal to act, or a settlement, be challenged? Does the
complainant have any right to know about what then happens during the dispute settlement
process?
The issues of EU27 and UK
citizens’ acquired rights may end up being overlooked by disputes over the
Irish border – where the text of the political fudge in the joint report is
difficult for lawyers to look at. But these issues are nevertheless central to
the day-to-day lives of the millions who moved before Brexit day, and cannot simply
be forgotten.
Barnard & Peers: chapter 27
Image credit: European Parliament
No comments:
Post a Comment