Revoking the notice to withdraw from the EU? The opinion in Wightman

Professor Steve Peers, University of Essex

Introduction

Was sending the Article 50 notification of withdrawal from the EU like jumping off a cliff – impossible to change your mind after jumping? Or was it rather like setting off to the shops, where you can change your mind about shopping while on the way there, in the car park, or even in the shop itself – perhaps because you discover that the promised discounts don’t exist, the management is under police investigation, and the massive Turkish foods section consists of a couple of dusty hazelnut packets?

We should soon find out from the Court of Justice. In the meantime we have today’s non-binding opinion from an Advocate-General. Although the Court might not follow the opinion, the judges will consider it carefully, and it’s worth discussing the issues which it raises. (See also the discussion here of the national court background to the proceedings, and the discussion here of the arguments for and against unilateral revocability. The EU courts have also ruled on a challenge to the withdrawal agreement negotiations, and on the UK’s current status as a Member State: see discussion here and here).

The opinion

First of all, the opinion dismisses the UK government’s argument that the case is hypothetical, because the government has not decided to withdraw the Article 50 notice and has no intention of doing so. In particular, the outcome of the ruling might be relevant when MPs cast their vote on whether to approve the withdrawal agreement with the EU, or on deciding what to do if the agreement is not approved.

The opinion then agrees with the petitioners – mainly UK politicians in the Westminster Parliament, the Scottish Parliament and the European Parliament – that the notification is in principle unilaterally revocable. First of all, it notes that Article 50 is silent on the issue of revocation, and so notes that three outcomes are possible: no revocation, unconditional revocation, and revocation with conditions. It approaches the issue by looking first of all at general public international law, and then at the specific wording of Article 50, followed by the issue of agreed revocation.

As for international law, the opinion is uncertain as to whether revocation of notification of withdrawal from a treaty is firmly established as a matter of customary international law (although there are several examples). The right to revoke withdrawals from a treaty unilaterally is, however, expressly set out in the Vienna Convention on the law of treaties (VCLT). The Opinion discusses whether the VCLT applies to withdrawal from the EU, and reaches the conclusion that it does not, given that the EU itself and some of its Member States are not parties to that Convention. Nevertheless, it argues that the VCLT may be useful when interpreting Article 50.

As for the interpretation of Article 50 as such, a literal interpretation does not resolve the question, since Article 50 is silent on the question of unilateral revocation of a withdrawal notice.  So it’s necessary to examine the context of the Article. In the Advocate-General’s view, it starts with a national phase ‘exclusively’ for the withdrawing State, when it decides on its intention to withdraw, ‘only conditional’ on following ‘that State’s own constitutional requirements’. The logical corollary is a unilateral power to revoke that decision, as ‘a manifestation of that State’s sovereignty’. So unilateral powers continue into ‘the negotiation phase, which begins with the notification of the intention to withdraw to the European Council and culminates two years later, unless there is an extension by unanimous decision of the Council.’ (Note that the withdrawal agreement itself can also set a later date, although the draft withdrawal agreement concluded between the UK and EU does not). More generally, like ‘other areas of law, in the absence of an express prohibition or a rule which provides otherwise, whoever has unilaterally issued a declaration of intent addressed to another party, may retract that declaration until the moment at which, by the addressee’s acceptance, conveyed in the form of an act or the conclusion of a contract, it produces effects’.

Next, the opinion observes that Article 50(2) TEU refers to a notification of an ‘intention’ to withdraw, ‘not to withdrawal itself’, which happens later. An ‘intention’ is ‘not definitive and may change’; the notification of that intention to a third party ‘may create an expectation in that party, but does not assume an obligation to maintain that intention irrevocably’.

Interestingly, the opinion also refers to the possibility of a withdrawal decision being ‘annulled, if the body having authority (ordinarily the highest courts of each State) holds that that decision was not adopted in accordance with the constitutional requirements.’ In this scenario, ‘there is little doubt that the State which notified its intention must also make known that it unilaterally revokes that notification, as its initial decision lacked the essential precondition.’

Similarly, following action ‘carried out in accordance with its constitutional requirements (for example, a referendum, a meaningful vote in Parliament, the holding of general elections which produce an opposing majority, among other cases)’, an initial decision might be ‘reversed and the judicial and constitutional basis on which it was sustained subsequently disappears’. Again, in that scenario, ‘that State can and must notify that change to the European Council’. These scenarios have international precedents in practice, as well as corresponding to Article 68 of the VCLT.

Furthermore, the opinion argues that insisting on a Member State leaving under such circumstances would be ‘a result contrary to common sense’, and accepting revocation would ‘respect’ a national parliament’s role as part of a Member State’s national identity. Refusal to accept revocation would entail a de facto forced exit from the EU.

The possibility of applying to rejoin did not contradict this interpretation either, as it would be illogical to spend the Article 50 time period negotiating future membership. And as the CJEU had already noted, a Member State remains a Member State throughout the Article 50 time period.

The opinion then rejected the contrary arguments of the Commission and Council. In the Advocate-General’s view, there is still a unilateral element after the notification is sent, because the withdrawing Member State can simply refuse to negotiate a withdrawal agreement. The power to extend the negotiating period did not mean by a contrario reasoning that no power to withdraw the notification exists. The Council’s argument about costs was unconvincing because ‘the financial costs (for the European Union and its citizens) arising from a Member State’s withdrawal would far exceed the (minimal) costs generated by the revocation’.

The opinion bolsters its argument by adding that the unilateral revocability would enhance the ‘ever closer union’ clause in the Treaties, ‘national identities’ of the Member States, and the rights of EU citizens would be enhanced by permitting unilateral revocability. It also argues that the historical background to drafting Article 50 supports the same result.

However, the opinion argues that some conditions exist. There must be a formal notification of revocation, matching the notification to withdraw. Equally, national constitutional requirements must be respected. Although he accepts that ‘this is an issue which falls to be determined by each Member State’, he argues that in the UK, the requirement for parliamentary authorisation to leave would logically be matched by parliamentary approval to revoke the notification. (He makes no specific mention of whether an Act of Parliament would be required). There would be no need to justify the decision to revoke.

There would also be a temporal limit: revocation ‘is possible only within the two-year negotiation period that begins when the intention to withdraw is notified to the European Council’, and ‘once the withdrawal agreement has been formally concluded, which implies the agreement of both parties’, revocation would no longer be possible either. The discussion here is inconsistent with the opinion’s previous reference to the possibility of extension of the Article 50 time limit.

Next, the ‘principles of good faith and sincere cooperation’ in Article 4(3) TEU set a limit. On this point, the EU institutions were concerned that a Member State ‘could revoke its notification and halt the negotiations if they were not favourable to it’, and ‘resubmit its notification of intention to withdraw, thus triggering a new two-year negotiation period’, circumventing the time limits on the process. But the Advocate-General rejected these arguments: ‘the possibility that a right may be abused or misused is, generally speaking, not a reason to deny the existence of that right’. A means to prevent abuse of the right must be found instead. The established ‘abuse of rights’ principle in EU law could be ‘applied in the context of Article 50 TEU, if a Member State engaged in an abusive practice of using successive notifications and revocations in order to improve the terms of its withdrawal from the European Union.’

There was no indication that any abuse was planned, and ‘any abuse could occur only when a second notification of the intention to withdraw is submitted, but not by unilaterally revoking the first.’ In the Advocate-General’s view, a large number of ‘tactical revocations’ was unlikely, in that the national ‘constitutional requirements’ rule would function as a ‘filter’, given the requirement of (for instance) elections, court decisions or referendums.

Finally, the opinion accepts that revocation can be agreed, in the event of a request from the departing Member State and unanimous agreement in the European Council.

Comments

First of all, the opinion convincingly argues that the case is not hypothetical. It rightly recalls the case law according to which national court references are presumed to be relevant; that presumption can only be rebutted in limited cases. There is a strong argument to answer these questions given the status of those petitioners who are MPs; and otherwise there could be a catch-22 scenario where MPs hesitate to vote on whether a referendum could be held because they do not know if unilateral revocation would be possible.

The main argument for unilateral revocability is equally convincing – in particular as regards the importance of the word ‘intention’, and the emphasis on the sovereign decision-making power of Member States. As regards safeguards against abuse, though, it is at least conceivable that national constitutional requirements will not always work as a filter, and so it would be preferable to spell out what limits – perhaps in the form of a refusal to consider a notification valid within a year or two of the previous notification, or the resumption of an Article 50 process where the last process left off – would be applicable.

It is unfortunate that the opinion is vague about the time limit issue though. Would notification only be possible within the two year time limit, or also during the the time limit as extended? The opinion is contradictory; the Court judgment (if it goes down these lines) should not be. The possibility of a delayed time limit in the withdrawal agreement should also be mentioned. The best interpretation, keeping with the logic of the opinion, is that revocation would also be possible within the extended time period.

Revocation with consent does not easily fit within the literal wording of Article 50, because there is no process for consenting. Moreover, it’s unlikely that any Member State would seek this route if it could revoke unilaterally instead. It might be used in a scenario where the Member State’s current membership was being renegotiated, though only Tony Blair thinks that might happen as regards the UK.

Overall, if followed by the Court, this opinion would be an unqualified victory for those arguing for unilateral revocation. Whether it changes the political dynamics remains to be seen, and I remain of the view that another referendum (which would still have to be won by the Remain side) is very unlikely. In any event, unilateral revocability could still prove relevant as regards other Member States that might someday wish to leave the EU.

Barnard & Peers: chapter 27

Photo credit: The Irish Times

The Brexit Withdrawal Agreement: Overview and First Observations

Professor Steve Peers, University of Essex

Introduction

The recently agreed Brexit withdrawal agreement may turn out to be dead on arrival, or at some point not long after. Nevertheless, if the agreement is ratified, it is the basis on which the UK would leave the EU – unless the two sides agree to amendments to the text.

Since the agreement is both complex and legalistic, but also the subject of intense political debate, there’s a need for a summary and explanation of the text for non-lawyers. This blog post aims to do that by outlining the structure of the agreement and the main content of each part of it in turn. It does not aim to be exhaustive, but only to give a broad indication of what the agreement entails.

Throughout the blog post, I’ve scattered the answers to ‘key questions’ which have been raised about what the withdrawal agreement does. Let’s start with this one:

Key question: Does the withdrawal agreement cover the long-term relationship between the UK and EU after Brexit?

No. The withdrawal agreement governs only the details of leaving the EU, not the long-term relationship between the UK and EU. On that issue, alongside the text of the agreement, there was also initially a draft outline of the political declaration on the future UK/EU relationship. This is the basis for negotiations that would take place after Brexit day. This declaration has since been finalised. Finally, there’s also a joint report on the state of negotiations to date.

This is (hopefully) the first in a series of several blog posts on the withdrawal agreement. I aim to come back to three specific issues in more detail: the ‘backstop’ relating to the Irish border; the role of the CJEU; and the future relationship. (Update, Dec 8: the blog post on the future relationship is here).

Also, for more detailed discussion on parts of the withdrawal agreement, I’ll refer to some blog posts on the March draft of the agreement – although, as I point out below, that draft has been amended on a number of issues.

Key question: What if the withdrawal agreement is not ratified?

Unless the two sides agree to amend it and then ratify the amended text, in principle the alternatives are the UK leaving the EU without any withdrawal agreement, or staying in the European Union. However, it remains to be seen if remaining by revoking the Article 50 notice of withdrawing is even legally possible: the Wightman case, now pending before the CJEU, will clarify this issue. A general election might be held, but that will not in itself change the options available. The Brexit date could be delayed, but both the UK government and the EU27 Member States (acting unanimously) would have to agree to this.

The EU Commission has issued preparedness notices setting out its view on what would happen if the UK leaves the EU without a withdrawal agreement. The UK government has also issued its own no deal notices. Last week, the Commission published a communication explaining what it would do in the event of no deal. In particular, it would suggest unilateral EU measures to keep basic aviation services to the UK (less than current aviation service). It would not propose issuing extra lorry permits, so access to the EU by UK commercial drivers would be highly curtailed. There would be no ‘adequacy decision’ on flows of personal data from the UK to the EU, so digital services would be somewhat more complicated.

It also proposed to waive visa requirements for short-term visits by UK citizens to the EU (for 90/180 days). This will not address residence for longer periods, which will be subject to EU and national laws on non-EU citizens, which are more restrictive than EU free movement rules. (For more details of the law applicable to UK citizens visiting or staying in the EU after Brexit, see my discussion here).

Structure of the withdrawal agreement

Part One of the withdrawal agreement (Articles 1-8) sets out the “Common Provisions”. These deal with basic issues like definitions and territorial scope.

Part Two of the withdrawal agreement (Articles 9-39) deals with citizens’ rights, for those EU27 citizens in the UK, and UK citizens in the EU27, before the end of the transition period.

Part Three of the agreement sets out “separation provisions” (Articles 40-125), ie the exact details of phasing out the application of EU law in the UK at the end of the transition period.

Next, Part Four sets out the rules on the transition period (Articles 126-132), during which substantive EU law still applies to the UK for two to four years after Brexit day.

Part Five concerns the financial settlement (Articles 133-157).

Part Six sets out “Institutional and Final Provisions” (Articles 158-185). This includes rules on CJEU jurisdiction over EU27 citizens, dispute settlement, making further decisions to implement the agreement and rules on entry into force and dates of application.

In addition there are three Protocols to the agreement (these have the same legal force as the main treaty), on Irish border issues,  UK bases in Cyprus, and Gibraltar.

Part One: Common Provisions

The main legal issue in Part one is the legal effect of EU law for the UK. The agreement must have the same legal effect for the UK as EU law does for EU Member States – including the principles of direct effect (meaning that the agreement as such can be enforced in national courts) and implicitly supremacy (meaning that national law which breaches the agreement must be disapplied by national courts). The UK must also pass an Act of Parliament to give effect to the Agreement; this is above and beyond the planned ‘meaningful vote’ on the agreement in Parliament.

All references to EU law require it to be interpreted in accordance with the normal rules of EU law. As for case law of the CJEU, references to EU law must be ‘interpreted in conformity with’ CJEU case law delivered before the end of the transition period. However, the rule is different for CJEU case law after the end of the transition period: in that case, the UK courts and authorities are only required to have ‘due regard’ for the case law. Note that none of this gives jurisdiction to the CJEU as such as regards the UK (although other parts of the Treaty give the Court some jurisdiction).

References to EU law include that law as amended until the end of the transition period, while references to Member States include the UK except when they refer to having voting or representation rights on EU bodies etc.

Part Two: Citizens’ rights

This part will mostly not apply until after the end of the transition period, since free movement of people will continue during that period. In principle, it provides that EU27 citizens in the UK before the end of that period (and UK citizens who are in the EU27 before the end of that period) will retain the same rights as those who arrived before Brexit day. To that end, it requires the two sides to keep applying EU free movement legislation to the people concerned, including legislation on social security coordination and the recognition of qualifications.

Some aspects of their legal status will change, however: the UK or EU27 Member States may require them to apply to prove their right to stay on the territory. The UK in particular plans to implement this, by means of a ‘settled status’ scheme. The risk is that some people will not have the documentation to prove their right to stay. Some categories of people currently covered by EU law (such as UK citizens returning to the UK with non-EU family members, or UK children in the sole care of one non-EU parent) will not be covered by the withdrawal agreement, so their position will be up to UK law. Similarly a number of EU27 citizens who would not qualify for status because they do not meet the ‘comprehensive sickness insurance’ requirement will be covered by a unilateral waiver of this rule by the UK, not the withdrawal agreement.

Also, the rules on family reunion in EU free movement law (which are more favourable than those under national law or EU law on non-EU families) will only apply where the family relationship existed before the end of the transition period, or the family member was legally resident in the same State then. If the citizens commit a criminal offence after the end of the transition period, national rules on expulsions will apply – and they may be more stringent than EU free movement rules on this issue.

The CJEU will have jurisdiction to rule on how the rules apply to EU27 citizens in the UK, on the basis of requests from UK courts, for eight years after the transitional period ends. There will also be an independent monitoring body in the UK with power to bring court cases on their behalf.

For further details, see my annotation of a previous version of the citizens’ rights Part of the treaty, which is only a little different from the final version.

Key question: Does the withdrawal agreement end free movement of people?

Yes, free movement ends at the end of the transition period, unless the UK and EU decide to sign a separate treaty as part of the future relationship extending free movement in the future. Currently the UK government opposes this idea. The ‘backstop’ relating to Northern Ireland, if it ends up applying, does not include free movement of people, but only the continuation of the UK/Ireland common travel area, which is more limited.

The withdrawal agreement also ends free movement for UK citizens already in the EU27, unless (again) a separate treaty as part of the future relationship addresses this issue.

Part Three: Separation provisions

This part tells out exactly how EU law ceases to apply at the end of the transition period, for a list of different issues. It was mostly agreed in March, with a few more Articles agreed in June, and the rest agreed since. The biggest difficulties were over geographical indications (ie, protection for those who call their product ‘Parma ham’) and what happens to cases pending before the CJEU on Brexit day.

Key question: Is the UK bound to EU law on geographical indications forever?

No, but it would be guaranteeing the continued protection of geographical indications for products which were protected at the end of the transition period.

More precisely, this part sets out rules for ending the application of EU law as regards thirteen issues: goods placed on the market; ongoing customs procedures; ongoing VAT and excise procedures; intellectual property protection; police and criminal law cooperation; cross-border civil litigation; personal data; public procurement; Euratom; judicial and administrative procedures; administrative cooperation; privileges and immunities; and other issues, such as the European Schools.

Key question: Does the CJEU have jurisdiction in the UK indefinitely?

No. Some have misread Article 89 of the withdrawal agreement, which refers to CJEU jurisdiction as regards cases coming from the UK, to mean that the UK will be covered by the Court’s jurisdiction forever. In fact, Article 89 simply confirms that the Court will have jurisdiction for cases sent from UK courts before the end of the transition period.

After that point, UK courts can send the CJEU cases only in limited contexts: for eight years after the transition period ends as regards EU27 citizens in the UK, or the protocols on Northern Ireland (in part) and Cyprus. Also, the Court has jurisdiction after this point to decide on how to interpret EU law if a dispute about the withdrawal agreement goes to arbitration (see Part Six).

Furthermore, the Commission can sue the UK in the CJEU for failure to implement EU law correctly for four years after the end of the transition period (though this can only concern alleged breaches which occurred before the end of the transition period as an EU Member State, or under the transition period Part of the agreement). Finally, the Commission can sue the UK to enforce State aid and competition decisions which were based on proceedings which started before the end of the transition period, but concluded afterward. 

It is possible that the future relationship will provide for continued EU/UK cooperation on some of these issues, in which case some of these separation clauses either will not come into practical effect at all, or will only apply in part. For instance, the EU and UK might end up agreeing in a new security treaty on another form of fast-track extradition instead of the European Arrest Warrant (EAW), and may therefore choose to agree different rules on transition from the EAW system to that new fast-track system.

Part Four: transition period 

This is a short part of the withdrawal agreement, yet it has the biggest effect: it keeps substantive EU law in place in the UK until the end of 2020.  It was agreed by March, except the negotiators have now added a new Article allowing for a possible extension.

The key elements of the transition period are that EU law (including new EU law) applies to the UK, except in areas covered by UK opt-outs (such as the single currency and justice and home affairs law; in the latter case, the UK retains part of its power to opt-in to new proposals on a case-by-case basis). There are special rules on external relations: for instance, the EU will notify non-EU countries that the UK should still be regarded as covered by EU free trade agreements, or other types of EU treaties between the EU and non-EU countries (the non-EU countries aren’t obliged to agree to this). The current rules on the allocation of fisheries catches can’t be changed to benefit either the EU or UK fishing fleets.

However, the UK will not be represented on any EU institutions or bodies – including on the CJEU, which will continue to have its usual jurisdiction regarding the UK during the transition period. The UK will only be consulted on new EU measures as a special exception. In one area – foreign and defence policy – the UK can refuse to apply new EU measures if it has fundamental objections to them, and the withdrawal agreement foresees an early treaty between the EU and UK that will replace the transition period rules.

For a detailed annotation of the transition period clauses – except for the extension clause which has now been added – see my earlier blog post.

Key question: Which EU laws does the transition period cover?

I’m often asked if the transition period covers a particular EU law like driving licences or aspects of the free movement of people, because readers can’t find a specific reference to that law in the withdrawal agreement. The simple answer is that the transition period covers all laws applying to the UK except a handful of exclusions, so the drafters didn’t bother with a list of those EU laws which are covered by it.

The EU laws which are not covered by the transition period are those about the European citizens’ initiative (on that process, see the case law discussed here) and also voting and standing for office in the European Parliament and local government. The UK (or its devolved legislatures) can, if it chooses, unilaterally continue to let EU27 citizens vote in local elections, and EU27 countries can choose to do the same for UK citizens. Also, as noted above, EU foreign and defence policy might not fully apply to the UK for the whole of the transition period.

This brings us to the new clause on extension of the transition period. It’s possible for the Joint Committee set up by the withdrawal agreement – which works by the mutual consent of the EU and UK – to decide by July 2020 if the transition period will be extended, for a period of up to a date to be decided (reportedly that date could be the end of 2022).

In that case, the transition period rules continue to apply to the UK for that extended period, except there would have to be an ad hoc negotiation on how much the UK pays into the EU budget during the extended period.  There are also special rules on agricultural support.

Key question: Can the UK be forced to stay in the transition period indefinitely?

No – and no. First of all, any extension of the transition period has to be agreed jointly, as noted already. Secondly, any extension won’t be indefinite, since the negotiators will add a final possible date for extension when they agree the final text of the withdrawal agreement.

On the other hand, the UK might theoretically end up in the backstop relating to Northern Ireland indefinitely. Although the withdrawal agreement says that this arrangement must be temporary, unlike the transition period there is no final date to end it and the UK cannot unilaterally end it at a certain date. However, the backstop is more limited in scope than the transition period, as it concerns only some EU laws (mainly on external trade, customs, and goods regulation, plus some limited application of EU laws on labour, the environment, state aids and competition in its Annexes). In particular, the backstop does not concern the free movement of people or services, or contribution to the EU budget.

Part Five: financial settlement 

This part incorporates the earlier agreement that the UK takes part in the EU’s spending until the end of the current budget cycle (end 2020), which matches the end of the transition period (unless that period is extended). As noted above, though, if the transition period is extended, the UK and EU will negotiate a separate EU contribution to the EU budget. It also includes UK payments to the budget incurred because the EU often makes financial commitments in one year and then pays them out in later years (the system known as reste à liquider). Furthermore, it includes continued payments to ‘off-budget’ EU spending such as commitments to developing countries, until the current versions of those programmes expire. For a detailed discussion of the finances of the deal, see reports from the OBR, the National Audit Office and the Institute for Government.

Key question: Has the UK agreed to pay £39 billion in return for nothing?

No. First of all, this begs the question: the EU regards the financial settlement as money which is payable in any event regardless of any future relationship, and took the view that the future relationship could not be formally negotiated before Brexit day anyway. Even on its own terms, the argument that ‘£39 billion is paid for nothing’ is wrong, since about half of of the money relates to the UK still applying substantive EU law during the transition period (see the OBR report), during which the UK still has its current access to EU goods and services markets (and vice versa). Anyway, a free trade deal could not have been negotiated in the time available, even if that had been legally possible (again: the EU says it was not).

Part Six: Institutional and Final Provisions

First of all, as noted above (in Part Two), the CJEU will have jurisdiction to rule on how the rules on citizens’ acquired rights apply to EU27 citizens in the UK, on the basis of requests from UK courts, for eight years after the transitional period ends. There will also be an independent monitoring body in the UK with power to bring court cases on their behalf. The two sides might agree to wind up the monitoring body at the end of the same time period.

Secondly, the CJEU will have jurisdiction, after the end of the transitional period, over the references to EU law in the financial settlement part of the agreement, in references from national courts or as regards Commission infringement actions brought against the UK.

Next, there’s a Joint Committee set up to oversee and implement the agreement. It will meet at least once a year, and there are a number of sub-committees dealing with specific issues like Northern Ireland and citizens’ rights. It can take certain decisions to add to the agreement – such as an extension of the transition period – but for all these decisions the EU and UK must both agree.

There are detailed rules on dispute settlement, providing for arguments about the agreement to go to a panel of arbitrators. However, if the arbitrators have to decide an issue of EU law when settling the dispute, they will have to ask the CJEU to give a ruling. This is unavoidable, since CJEU case law insists that the EU and its Member States cannot be bound by an interpretation of EU law other than the CJEU’s (see, for instance, CJEU Opinion 1/92).

The Northern Ireland backstop rules out the arbitration process (including the CJEU) from much of the ‘level playing field’ rules on labour law, environmental law, tax, and competition and state aids law (see below). However, the CJEU has jurisdiction over part of the backstop, as well as the Protocol on bases in Cyprus.

Key question: Does the CJEU have jurisdiction over the entire agreement?

No. The Court has its usual jurisdiction under the transition period, and following that specific jurisdiction over EU27 citizens’ rights and EU law referred to in the financial settlement, as well as the protocols on Northern Ireland (in part) and bases in Cyprus. But the arbitrators can only refer disputes over EU law to it, not disputes over the entire agreement – although a lot of the agreement does refer to EU law. Also, some key points in the backstop are outside the arbitrators’ or the CJEU’s jurisdiction.

Note that this part of the agreement differs a lot from the dispute settlement clauses as the Commission proposed them in March (see discussion here) – which included powers (tilted toward the EU) for both sides to impose sanctions on each other. The final version looks a lot more like traditional international dispute settlement, and is presumably a concession by the EU to the UK.

Finally, the last provisions of the main withdrawal agreement set out ‘boilerplate’ rules: confirming that the three Protocols and nine Annexes are binding; setting out the authentic languages of the text and the depositary; and setting the date of entry in force (30 March 2019). The withdrawal agreement applies from that date, except the parts on citizens’ rights, separation provisions, dispute settlement and the three Protocols mostly apply from the end of the transition period (with specified exceptions which apply immediately). There’s also a commitment to negotiate on the future relationship, referring to the separate joint declaration on that issue, ‘with a view to’ agreeing those texts by the end of the transition period ‘to the extent possible’.

Protocol on Irish border issues

The Northern Ireland Protocol starts with three new Articles compared to the March draft, on UK territorial integrity and emphasising that the Protocol is meant to be temporary. Also there’s a link back to the possible extension of the transition period mentioned above (Part Four). A new review clause was added, but both sides would have to agree to disapply the protocol partly or wholly.

As for the substance of the Protocol, it refers to equality rights and the common travel area between the UK and Ireland, as already agreed (these issues were never controversial).

Key question: Does the common travel area continue the free movement of people between the UK and EU?

No. The absence of border checks makes it impossible to refuse entry to people at the border with Ireland, but that does not mean any EU27 citizens crossing that border (besides Irish citizens) have the right to reside or work in the UK (and vice versa for people crossing into Ireland, besides UK and EU citizens). There is UK legislation on liability for employers, landlords et al who hire or do business with people who are not authorised to work or reside that will be relevant here.

Then there’s the UK-wide customs union backstop, part of which is specific to Northern Ireland. There are a number of elements of this. This part of the Protocol links to Annexes on: a) trade in goods between EU/UK/non-EU states; b) customs cooperation; and c) a ‘level playing field’, which means some degree of continued harmonisation of law relating to tax, the environment, labour law, state aid, competition, and public companies/monopolies.

However, this falls short of the obligations of EU Member States; there are limited obligations to keep up with new EU legislation and CJEU case law; and as noted above (Part Six), the arbitration rules (including CJEU jurisdiction) mostly do not apply to this ‘level playing field’. There’s a lot of EU law that wouldn’t apply to the UK – most notably the free movement of persons, services and capital, and contributions to the EU budget. So while the backstop would still commit the UK to a chunk of EU law on trade in goods, and in a limited way to some law in the ‘level playing field’ areas, the continued application of EU law would be much less than under the rules on the transition period.

The Protocol also contains provisions on the UK internal market, as well lists of specific EU laws that apply in Northern Ireland: product regulation, VAT and excise tax, agriculture and the environment, a single electricity market,  and state aids. There’s also a vague reference to other North/South cooperation. Finally, the institutional provisions of the Protocol provide that EU bodies, including the CJEU, have competence to apply or interpret the provisions of the Protocol that are specific to Northern Ireland.

Protocol on UK bases in Cyprus

This Protocol confirms that the bases in Cyprus remain within EU customs territory after Brexit, and EU regulations on goods, including agricultural and fisheries laws, still apply. EU law on excise taxes and VAT also continues to apply. Goods supplied to the staff on the bases are exempt from customs and taxes, and the UK and Cyprus may agree further rules on social security coordination. There are rules on checks at the border of the bases area, and a general obligation to cooperate to prevent fraud. Finally, the EU institutions, including the CJEU, have competence to apply and interpret EU law referred to in the Protocol.

Protocol on Gibraltar

First of all, this Protocol provides for the UK and Spain to cooperate on workers’ rights as regards the Spain/Gibraltar crossing. Next, it retains the status quo on access to aviation, unless the Joint Committee decides differently. It also contains general provisions on cooperation on tax and fraud, environmental protection and fishing, and police cooperation.

Assessment

The desirability of the withdrawal agreement can only be assessed in light of the alternative options available. Whether it’s possible to end the Brexit process at all by revoking the notification under Article 50 remains to be clarified by the CJEU, as noted above. If that’s not possible, Brexit could be averted only by extending the period of negotiations under Article 50 in order to amend the Treaties to permit revocation of the withdrawal notice, but that is a stretch.

Amendment of the text of the withdrawal agreement is technically possible, but the EU has signalled that it would not be willing to consider any significant amendment to the text. Holding a general election obviously appeals to anyone who wants a change of government in any event, but does not change the fundamental issues relating to the withdrawal agreement or the Brexit process as such.

Objecting to the withdrawal agreement because of objections to the separate future relationship declaration makes little sense. The EU always took the view that it would not and could not negotiate the future relationship formally before Brexit day, and there would anyway not have been enough time to negotiate a full future relationship in two years (unless the UK decided to stay in the EEA as an off-the-shelf model, which would still have required some separate issues to be negotiated). Furthermore, since the future relationship declaration is not binding, the nature of that future relationship is still all to play for.

The options as regards the withdrawal agreement are therefore to support it, to overturn the Brexit process (if that turns out to be legally possible), or to leave the EU without a withdrawal agreement, and therefore without a trade agreement. Each of these three options may individually lack a majority in Parliament, but the no deal option – although it probably commands the least support – is the default if one of the two other options does not command a majority. A no deal outcome – damaging UK exports to their largest market, leaving the position of UK citizens in the EU27 and EU citizens in the UK less secure, disrupting the UK security relationship with the EU, significantly limiting flights and commercial lorry transport with the EU, and raising barriers to transfers of data from the EU to the UK – is manifestly not in the UK’s interest, and no responsible politician should support it. The choice is therefore between the withdrawal agreement or reversing the Brexit process (if possible) as a means to avoid this end.

For supporters of Brexit, the withdrawal agreement may be a disappointment, applying substantive EU law to the UK for the transition period and potentially a proportion of EU law to the UK via the backstop after that. From this perspective, it’s unfortunate that the possibility of staying in the EEA – giving the UK a judge on the EFTA Court and consultation rights on EU proposals, limiting the effect of EU law in the UK, and possibly reducing the scope of EU law applicable to the UK at an earlier point – wasn’t explored from the outset as at least a partial substitute for the transition period.

However, given that new Member States have a transition period of several years when they join the EU (as the UK did when it joined the previous EEC) and usually gear up alignment with EU law for several years before joining, it was unrealistic to imagine ending the UK’s application of substantive EU law would happen all in one go. The withdrawal agreement recognises the unavoidable complexity of the process, phasing out membership via different stages while still offering options for a future relationship – subject to the need to avoid checks on the Irish border.

Whichever of these two routes is ultimately chosen – managed withdrawal or reconsidered reversal – it’s important to find a way of avoiding the worst-case scenario of a no deal Brexit: the project of greedy capitalists, seedy jingoists, tweedy fantasists and needy narcissists.

Barnard & Peers: chapter 27

Photo credit: BBC

Brexit means...no legal changes yet: the CJEU rules on the execution of European Arrest Warrants issued by the UK prior to Brexit Day

Professor Steve Peers, University of Essex

There’s a lot of legal debate about the consequences of Brexit, but the definitive word on the legal issues, as far as the EU is concerned, is the EU’s Court of Justice. Its first judgment on Brexit issues was released today, defining the legal position up until Brexit Day – and arguably influencing the approach to be taken after that date.

Today’s judgment in RO concerned whether Ireland was still obliged to execute a European Arrest Warrant (EAW) issued by the UK, in light of the UK’s expected withdrawal from the EU, having notified its intention to leave on the basis of Article 50 TEU.  In fact, the draft withdrawal agreement would regulate this issue to some extent: EU law (including the EAW) would still apply to the UK for a transition period (discussed here) until the end of 2020, subject to the caveat that EU Member States could refuse to surrender their own citizens pursuant to an EAW issued by the UK (the UK could reciprocate). At the end of the transition period, outstanding EAWs could still be executed between the UK and EU as long as the fugitive was arrested on the basis of the EAW before that date.  However, these specific provisions are not yet agreed, and of course nor is the entire withdrawal agreement, so inevitably the Court made no mention of this draft treaty in its ruling.

The UK issued two EAWs for the purpose of prosecuting RO on grounds of murder, rape and arson charges, but he has challenged the execution of the warrants in Ireland. RO is in detention pending execution of the EAWs, which is why the Court agreed to fast-track this case. (Note that it refused to fast-track an earlier reference on the same issues, referred by the Irish Supreme Court. It also refused to fast-track a similar case on whether the Dublin asylum rules still apply to the UK in light of Brexit). RO argued that he faced torture or inhuman or degrading treatment in UK prisons, based on 2016 CJEU case law (discussed here), which was since clarified in July. The Irish High Court therefore asked the issuing judicial authority to clarify that detention conditions in Northern Ireland would meet minimum standards, and it was satisfied with the reply.

However, the Irish High Court was still concerned about the impact of Brexit on RO’s case, and so asked the CJEU if it had any impact on executing the EAW. RO argued that there was no guarantee that the UK would continue to be bound by the EAW law after Brexit Day, in particular the rules on: deducting custody periods spent in the executing state from any subsequent sentence; the ‘specialty’ rule (the fugitive can only be prosecuted for the offences specified in the EAW); limits on further surrender or extradition to an EU or non-EU State; and the protection of human rights under the EU Charter of Fundamental Rights.  Furthermore, the CJEU would likely not be in a position to rule on these issues as regards the UK after Brexit Day.

Judgment

The Court began by noting that mutual trust between Member States was founded on “common values” referred to in Article 2 TEU. This principle means, as regards justice and home affairs, that “save in exceptional circumstances” Member States must presume all other Member States “to be complying with EU law and particularly with the fundamental rights recognised by EU law”. For the EAW, this manifested itself in a system of mutual recognition, entailing an obligation to execute an EAW issued by a Member State except “in principle” where the exhaustive grounds for refusal listed in the EAW apply. But the “exceptional circumstances” permit an executing State’s court to end the EAW process, for instance where there was a risk of torture et al under Article 4 of the Charter (which matches Article 3 ECHR). In this case the national court was satisfied that there was no risk of losing rights at present; but what about the position of the fugitive after Brexit day?  

On that point, the Court noted that an Article 50 notification “does not have the effect of suspending the application of EU law” in the withdrawing Member State. Therefore EU law, including the EAW legislation “and the principles of mutual trust and mutual recognition inherent in that decision, continues in full force and effect in that State until the time of its actual withdrawal from the European Union”. The Court summarised the Article 50 process without commenting on whether it would be possible to rescind the notification, as discussed here. That issue is relevant to this case since a withdrawal of the notification would render the fugitive’s argument moot, but the issue does not seem have been raised in the case, presumably because it would not have helped the fugitive and is only hypothetical as long as the UK government is not contemplating withdrawing the notice.

In the Court’s view, disapplying the EAW to the UK simply because an Article 50 notification had been sent would “be the equivalent of unilateral suspension of the provisions of the” EAW law, and would ignore the wording of its preamble, which says that it can only be suspended if the EU decides that an issuing Member State has breached the EU’s values. A recent CJEU judgment concerning alleged breaches of EU values in Poland (discussed here) concluded that EAWs could only be suspended on a case-by-case basis if no such finding of breach had been made.  An Article 50 notification was not an “exceptional circumstance” suspending the principle of mutual trust.

However, RO could argue that there were “substantial grounds for believing” that after Brexit, he was “at risk of being deprived of his fundamental rights and the rights derived” from the specific provisions of the EAW law referred to by the national court (listed above). On those points, the Irish court had already dismissed the argument that there was a risk of torture, et al, owing to UK prison conditions. Brexit would not affect that position, in the Court’s view:  

In that regard, it must be observed that, in this case, the issuing Member State, namely the United Kingdom, is party to the ECHR and, as stated by that Member State at the hearing before the Court, it has incorporated the provisions of Article 3 of the ECHR into its national law. Since its continuing participation in that convention is in no way linked to its being a member of the European Union, the decision of that Member State to withdraw from the Union has no effect on its obligation to have due regard to Article 3 of the ECHR, to which Article 4 of the Charter corresponds, and, consequently, cannot justify the refusal to execute a European arrest warrant on the ground that the person surrendered would run the risk of suffering inhuman or degrading treatment within the meaning of those provisions.

As for the specific provisions of the EAW, there were no “ongoing legal proceedings” which might infringe the specialty rule, and no “concrete evidence to suggest” that any such proceedings are being “contemplated”. This was equally true of the potential surrender or extradition to an EU or non-EU State. Furthermore, these provisions of the EAW law “reflect” provisions of the Council of Europe’s extradition Convention, which has been ratified by the UK and applied in its national law. So in the Court’s view, “[i]t follows that the rights relied on by RO in those areas are, in essence, covered by the national legislation of the issuing Member State, irrespective of the withdrawal of that Member State from the European Union”. The deduction of previous prison time served also exists in UK law and will apply regardless of whether the extradition process is part of EU law.

Since the rights based on the legislation and the Charter “are protected by provisions of [UK] national law in cases not only of surrender [under the EAW law], but also of extradition, those rights are not dependent on the application” of the EAW law as such to the UK, and “there is no concrete evidence to suggest that RO will be deprived of the opportunity to assert those rights before the courts and tribunals of” the UK after Brexit.

Nor was the potential absence of CJEU jurisdiction decisive, because the fugitive “should be able to rely on all those rights before a court or tribunal of” the UK, and the Court’s jurisdiction did not always apply to the EAW law anyway. Indeed while the law applied from 2004, the Court’s jurisdiction did not apply fully until 2014.

Overall then:

…in order to decide whether a European arrest warrant should be executed, it is essential that, when that decision is to be taken, the executing judicial authority is able to presume that, with respect to the person who is to be surrendered, the issuing Member State will apply the substantive content of the rights derived from the Framework Decision that are applicable in the period subsequent to the surrender, after the withdrawal of that Member State from the European Union. Such a presumption can be made if the national law of the issuing Member State incorporates the substantive content of those rights, particularly because of the continuing participation of that Member State in international conventions, such as the European Convention on Extradition of 13 December 1957 and the ECHR, even after the withdrawal of that Member State from the European Union. Only if there is concrete evidence to the contrary can the judicial authorities of a Member State refuse to execute the European arrest warrant.

Comments

What has the Court’s judgment told us about the Brexit process? First of all, it confirms that in the run up to Brexit nothing much will change, even though some legal relationships and processes begun before Brexit Day will conclude after it. The general statement that EU law continues to apply to the UK until Brexit Day is qualified, but those qualifications have little impact, as long as the UK continues to apply the ECHR, the Human Rights Act, EU legislation and any other relevant international treaties until that date. While the Court refers implicitly to the UK’s Extradition Act, the EU Withdrawal Act has more generally provided for the retention of EU law in UK domestic law after Brexit.  

Only if the UK starts making prospective changes to that retained law before Brexit Day will there be an issue about the UK/EU relationship during that time.  In that case the test will be whether the specific EU law rights which the litigant seeks to rely upon will be removed by the UK post-Brexit. There would have to be “concrete evidence” of the removal of such rights. Logically the rantings of an angry backbencher should not be enough evidence to that end, whereas a change in the law should be. In between those two ends of the spectrum, a government intention to amend policy, or a government bill tabled before parliament, would arguably be enough.

After Brexit it remains to be seen whether the EAW largely continues applying during the transition period, with an agreed phase out process (in the event that the withdrawal process is agreed). In that scenario attention will turn to the details of the future UK/EU relationship in this area (more on that issue here). Today’s judgment, with its acceptance that Member States can rely upon the future position of a non-Member State as long as it complies with the ECHR and EU legislation, even if no CJEU jurisdiction applies, does not lend support to those who claim that it will be impossible for the UK to have a close relationship with the EU in this field after Brexit. (Note also that in the NS judgment, the CJEU assumed that the principle of mutual trust can apply to non-EU States, in para 78). In any event, the limits on Member States extraditing citizens of another Member State to a non-EU State will apply (see discussion of the case law here).

If there’s no withdrawal agreement, then there may be conflicting approaches to the validity of EAWs pending on Brexit day (which the CJEU will likely be called upon to settle, along with similar issues relating to other EU legislation disapplying to the UK). There would also be a reversion to the use of the Council of Europe extradition treaty, with EAWs either being treated as extradition requests or having to be reissued. The UK would immediately lose access to the Schengen Information System, which is how many EAWs are transmitted. As a consequence, as evidenced by the impact of introducing the EAW, fewer people would be extradited and the process would take longer. All this would one among a number of legal and practical challenges arising from such a major disorganised disruption.

Barnard & Peers: chapter 25; chapter 27

JHA4: chapter II:3

Photo credit: The Journal.ie

What do the 'no deal' notices tell us about Brexit and health?

Sarah McCloskey and Professor Tamara Hervey, University of Sheffield

The clock ticks towards Brexit Day and time to devise an agreement dwindles. The odds on reaching one are said to be at 50:50. This means increased incentives for both the UK and the EU to set out exactly what the implications of the UK leaving the EU without a legally binding Withdrawal Agreement (‘no deal Brexit’) would be. The EU began doing this in January 2018, through a series of ‘Brexit preparedness notices’. The UK issued its equivalents in August.

Here we focus on the UK notices, with reference to their EU counterparts, considering their implications for the health sector.

Overall, the UK’s notices attempt to pursue two conflicting functions. This leads to a pervading sense of contradiction. On the one hand, they aim to assure and provide certainty. Simultaneously, however, they set out to paint a sufficiently bleak picture to seek to deter negotiators from such an outcome.

Indeed, contrary to the idea propagated by some ministers that defaulting to WTO rules would be favourable, each notice begins with a statement that the statements merely represent a responsible government prudently preparing for all eventualities in the context of otherwise promising negotiations.

The Secretary of State for Health and Social Care has taken this one step further by advising that the work already done gives a clear basis for the health sector “to plan so that patients can continue to receive high-quality care unhindered.”

Said planned actions outlined within the respective notices include:

-       Stockpiling a six-week supply of medicines to allow for delays as a result of e.g. border controls.

-       Setting up new national systems - e.g. a national portal to which regulatory information about human medicines and devices can be submitted directly.

-       Increasing the role of the Medicines and Healthcare products Regulatory Agency (MHRA), including in areas such as batch testing medicines and approval of paediatric and orphan medicines. This is to account for the cessation of European Medicine Agency (EMA) membership. Its details of this are to be subject to an autumn consultation.

These actions attempt to counter the systemic and regulatory black holes that would result from what the EU has described as a ‘cliff-edge scenario’.

Regulatory alignment - the solution in the EU (Withdrawal) Act 2018 - does not remove the need for contingency planning. For example, despite the UK’s plan to retain regulations on blood and blood product standards, to import into the UK, it will be necessary to show compliance with UK standards, which are to be a continuation of EU standards. But the systems by which such compliance is shown involve cooperation and mutual recognition, not unilateral behaviour.  Similarly, the UK government’s intentions to align with the 2019 Clinical Trials Regulation ‘wherever possible’ when it comes into force post-Brexit Day won’t prevent the UK’s exclusion from the new EU clinical trials database. (Indeed, the EU has advised that efforts have already begun to remove the UK from several existing databases once it exits the EU.) Every example where there are elements of reciprocity in EU-UK relations is similar. UK patients will be excluded from the EHIC scheme. The system of sharing information about medical professionals won’t apply any more, so the UK won’t be notified of concerns about EU-27 doctors working in the UK.

On a no-deal Brexit, the UK will be immediately excluded from EU decision-making processes. The UK will no longer be represented at committees which decide on safety of certain medical devices (including cardiac pacemakers and breast implants). It has already been excluded from some EMA processes, on the basis that the person chairing the EMA committee has to be present for the whole period of decision-making, and that’s not the case for the MHRA.

One of the EU’s strengths is in its collective decision-making powers, used to devise common regulations. Of course, no regulatory system is perfect, but on leaving the EU, the UK loses many of the trade-improving, burden-easing, and practice-refining benefits that come with economies of scale.

And, for the health sector, there are no clear counter-advantages. The EU regulations are a product of the member states’ views; the UK’s voice has been heard and expert research has been considered to create them. Thus, as highlighted by the UK’s notices, there is no clear motivation to do anything other than copy and paste them. But, as the EU has stated unambiguously, the UK’s fundamental change in status to a third country means that this will by no means equate to continuity.

Barnard & Peers: chapter 27, chapter 21

Photo credit: Royal College of Nursing