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

Analysis of the ECtHR judgment in Big Brother Watch: part 1

Lorna Woods, Professor of Internet Law, University of Essex

This chamber judgment is the latest in a line of cases that deal with secret surveillance, a topic which seems to be appearing increasingly frequently in a post-Snowden world. This judgment is substantial (over 200 pages in length) and deals with three cases challenging the UK’s now mainly repealed Regulation of Investigatory Powers Act 2000 (RIPA) as regards to interception of communications in bulk, the acquisition of communications data and the sharing of intercepted communications and communications data between the UK and the United States of America: Big Brother Watch (app no. 58170/13), Bureau of Investigative Journalism and Alice Ross (app no. 62322/14) and 10 Human Rights Organisations (app. no. 24960/15).  It follows in the steps of the Liberty case (app no. 58243/00) against the previous regime and, given the similarity between some aspects of RIPA and the Investigatory Powers Act 2016 (IPA), might have relevance for our understanding of that act too. In addition to questions about Article 8, the judgment also deals with the impact of surveillance on freedom of speech under Article 10 ECHR. 

This post is the first of two on the judgment. It outlines the issues and the Court’s reasoning. The second comments on the judgment. Given the size of the judgment that will be just an initial reaction to the judgment – there will, no doubt, be much more to be said.

Factual Background

The applicants in the three cases are organisations and individuals who are either journalists or are active in campaigning on civil liberties issues. Their challenges to RIPA were triggered by the information revealed by Edward Snowden which made apparent the existence of surveillance and intelligence sharing programmes operated by the intelligence services of the United States and the United Kingdom.  Specifically, they believed that the nature of their activities meant that their electronic communications and/or communications data were likely to have been intercepted or obtained by the UK intelligence services relying on the regime found in RIPA.  Three areas of problems were highlighted:

-          bulk interception of ‘external’ communications under s. 8(4), as well as connected communications data;

-          the sharing process whereby the British agencies received data collected by the US; and

-          access to communications data under Part II RIPA.

In all instances the applicants thought that the protection against abuse were insufficient and that the regimes were neither lawful nor necessary in a democratic society.

Only the applicants in the third case brought an action before the Investigatory Powers Tribunal (IPT), alleging violations of Articles 8, 10 and 14 of the Convention.  Although the IPT found two ‘technical violations’ of the Convention, in the main it regarded the challenged regime to be in accordance with the requirements of Article 8, notably the requirements set down in Weber and Saravia (app no. 54934/00).

Judgment

The first issue concerned exhaustion of domestic remedies, in particular the failure to bring a case before the IPT.  The applicants argued that in the light of the ECtHR’s own ruling in Kennedy (app no. 26839/05), the IPT would not be an effective remedy and they were therefore not obliged so to do.  The Court agreed with this assessment of its case law in general terms, but now thought that recent practice showed that the IPT now constituted a viable route for a remedy, especially given the response of the UK government to its findings. Nonetheless, the Court accepted that, at the time the applicants in the first and second of the joined cases introduced their applications, they could not be faulted for having relied on Kennedy as authority for the proposition that the IPT was not an effective remedy for a complaint about the general Convention compliance of a surveillance regime. It therefore found that there existed special circumstances absolving those applicants from the requirement that they first bring their complaints to the IPT.

The Court first considered the position under s. 8(4) RIPA and whether it met the tests of legitimate purpose, lawful and necessary in a democratic society. In doing so, it noted that there was jurisprudence in this field but that in previous jurisprudence the Court had distinguished between different types of secret surveillance, finding that there different levels of intrusion depending on the data collected, and also different rules depending on whether national security was in issue.  The Court sought to synthesise the principles, suggesting that the 6 principles established in Weber – to ensure the lawfulness of any such regime - were the starting point, though they might need to be differently applied depending on the type of surveillance. These need not be updated to take account of changes in technology.  These minima are:

-          the nature of offences which might give rise to an interception order;

-          definition of the categories of people liable to have their communications intercepted;

-          a limit on the duration of interception;

-          the procedure to be followed for examining, using and storing the data obtained;

-          the precautions to be taken when communicating the data to other parties; and

-          the circumstances in which intercepted data may or must be erased or destroyed.

In the context of national security it also recognised the gloss added by the Grand Chamber in Zakharov (app no. 47143/06) the review mechanisms and remedies should also be taken into account. The Court noted that the nature of secret surveillance was such that until an individual were to be notified about such surveillance, that individual would not be in a position to exercise their rights. In this, the safeguards against abuse assumed high importance; moreover, the role or rights to remedies was important for protection after notification.

Looking at the situation in issue, the Court started by making the general point that operating a bulk interception scheme was not in itself in violation of the Convention. Governments would have “a wide margin of appreciation” in deciding what kind of surveillance scheme was necessary to protect national security.  The operation of the system would still however need to be checked to ensure that there were sufficient safeguards against abuse.  The applicants argued that the fact that there was no requirement for prior judicial authorization was a fatal flaw in the scheme. 

The Court agreed judicial authorisation was an important safeguard, perhaps even “best practice”, but by itself it was neither necessary nor sufficient to ensure compliance with Article 8. It was unnecessary because of the ex post controls available in the British system. Looking to Zakharov, the Court recognised that a formal requirement was insufficient – the requirement there had not prevented bad practice. The Court then held that regard had to be had to the actual operation of the system of interception, including the checks and balances on the exercise of power, and the existence or absence of any evidence of actual abuse.

In assessing the scheme the Court took the law at the time of its consideration of the claims; this meant that the Court considered the matter after the impact of the Snowden leak and some of the consequent changes to practice, including revisions to relevant codes accompanying RIPA, as well as statements in Parliament (such as the clarification as to what an external communication was – it includes Google searches, tweets and Facebook posts from by users in the UK). 

The Court took the view that, as regards the first Weber requirement, the law was clear as to the circumstances in which and the conditions on which a section 8(4) warrant might be issued. There was no evidence to suggest that the Secretary of State was authorising warrants without due and proper consideration. The authorisation procedure was subject to independent oversight and the IPT had extensive jurisdiction to examine any complaint of unlawful interception. Following its analysis in Kennedy, the Court accepted that the provisions on the duration and renewal of interception warrants, the provisions relating to the storing, accessing, examining and using intercepted data, the provisions on the procedure to be followed for communicating the intercepted data to other parties and the provisions on the erasure and destruction of intercept material provided adequate safeguards against abuse.

There were some weaknesses in the system.  While in the opinion of the Court the selectors (e.g. email address) and search criteria used to narrow down the mass of information collected to that which would be read by analysts did not need to be made public or be listed in the warrant ordering interception, the choice of search criteria and selectors should be subject to independent oversight (para 387); indeed the Court expressed some concerned about the cables (‘bearers’) selected for tapping. Here the ex post review by the Interception of Communications Commissioner (now replaced under the IPA by the Investigatory Powers Commissioner) and, should an application be made to it, the IPT were held not to be ‘sufficiently robust to provide adequate guarantees against abuse’ (para 347).

The Court also expressed concern about communications data.  This is often summarised as who, where, when but this underplays the significance of the data collected.  Indeed, here the Court rejected the Government’s argument that communications data was necessarily less sensitive than the content of the communications (para 357). The Court explained the position thus:

... the content of an electronic communication might be encrypted and, even if it were decrypted, might not reveal anything of note about the sender or recipient. The related communications data, on the other hand, could reveal the identities and geographic location of the sender and recipient and the equipment through which the communication was transmitted. In bulk, the degree of intrusion is magnified, since the patterns that will emerge could be capable of painting an intimate picture of a person through the mapping of social networks, location tracking, Internet browsing tracking, mapping of communication patterns, and insight into who a person interacted with. (para 356)

In the context of s 8(4), communications data associated with the communications intercepted is also covered by the warrant but crucially some of the limitations (e.g. that the communication must be external) do not apply to this data.  The Court concluded that the unjustified lower level of protection meant that there was a violation in this regard.

The Court then considered the data sharing arrangements, the first time that the Court had been asked to consider the matter. It noted to start with the many ways in which this issue might arise.  The interference in the case had not been occasioned by the interception of communications itself but lay in the receipt of the intercepted material and subsequent storage, examination and use by the intelligence services.  It confined its judgment to the specific argument brought before it: the breach occasioned by the British services receiving American intelligence.  The applicants argued that this indirect access should be treated the same way as direct surveillance by the British services.  The Court commented that:

"[a]s with any regime which provides for the acquisition of surveillance material, the regime for the obtaining of such material from foreign Governments must be 'in accordance with the law'..., it must be proportionate to the legitimate aim pursued, and there must exist adequate and effective safeguards against abuse .… In particular, the procedures for supervising the ordering and implementation of the measures in question must be such as to keep the 'interference' to what is 'necessary in a democratic society'" (para 422).

The Court also recognised the danger of States using intelligence sharing as a means to circumvent controls (para 423).  It nonetheless accepted that the safeguards need not look identical in this context as in that of direct surveillance. Applying the principles to the facts, the Court found unanimously that there had been no violation. In particular, it accepted that the lawful requirement had been satisfied although the basis for the data sharing was an internal agreement which were disclosed only during proceedings before the IPT and subsequently incorporated into the Interception of Communications Code (para 426). The Code links the circumstances in which intelligence may be requested to the issuing of s. 8(1) or s. 8(4) warrants, thus circumscribing the circumstances in which such requests may arise and indirectly imposes supervision via sign-off by the Secretary of State and review by the ISC and the Interception of Communications Commissioner. 

The Court applied its assessment of the Code’s safeguards in relation to s. 8(4) warrants (in paras 361-363) here. Its assessment of the proportionality of information sharing was influenced by the threat of international terrorism and the global nature of terror networks necessitating information flow. In the Court’s view, ‘this “information flow” was embedded into a legislative context providing considerable safeguards against abuse’ so that ‘the resulting interference was to that which was “necessary in a democratic society”’ (para 446) and it considered that the threshold set by the Venice Commission – that the material transferred should only be able to be searched if all material requirements of a national search were fulfilled – were met (para 447). 

The next issue was the final question relating to Article 8.  It concerned Chapter II of RIPA which allows specified authorities to access communications data held by communications service providers (CSPs).  As noted, communications data is not necessarily less intrusive than content.  The Court did not however go into detail on this here, although it noted that real time surveillance is more intrusive that the transfer of records of existing data (citing Ben Faiza (app no. 31446/12)). It re-iterated that the same three criteria apply: lawfulness, legitimate aim and necessary in a democratic society.  The Court focussed on the lawfulness of the rules, referring to the position under EU law – notably Digital Rights Ireland (Case C-293/12 and C-594/12) and Watson (Case C-698/15) - which requires that any regime permitting access to data retained by CSPs was only to be for the purpose of combating “serious crime”, and that such access be subject to prior review by a court or independent administrative body. RIPA -although it provided a clear basis for action on the face of it - did not comply with this requirement and was therefore was not compliant with domestic law requirements (para 467).

A further issue arose in the Bureau of Investigative Journalism (BIJ) complaint. There, BIJ (a newsgathering organisation) and a journalist (Ross) raised the issue of interference with confidential journalistic material occasioned by the operation of both the section 8(4) and the Chapter II regimes.  While the Court has emphasised the importance of protection of journalists’ sources, its case law has distinguished between court orders for disclosure and searches carried out by the authorities to obtain this information – that latter is more intrusive. Further, the Court also distinguished between attempts to reveal sources and investigations into the commission of crimes. So the importance of source confidentiality is not an automatic trump card. The Court noted that the s. 8(4) regime was not aimed at monitoring journalists or uncovering journalistic sources.  The authorities would often only know that a journalist’s communications had been intercepted when examining the intercepted communications. Following Weber, this in itself could not be characterised as a particularly serious interference with freedom of expression. Nonetheless, where those communications were selected, the concerns would increase and safeguards would be required, especially as regards the need to protect confidentiality. In this context, concerns expressed in relation to the s. 8(4) regime ran through to Article 10 concerns. The Court emphasised that:

... there are no [public] requirements...either circumscribing the intelligence services' power to search for confidential journalistic or other material (for example, by using a journalist's email address as a selector), or requiring analysts, in selecting material for examination, to give any particular consideration to whether such material is or may be involved. (para 493)

This blanket power without any “above the water” arrangements limiting the intelligence services’ ability to search and examine such material constituted a violation of Article 10.

As regards the Chapter II regime, while there were some protections in place for journalistic sources, the Court determined that this was limited. They applied only where the purpose of the application was to determine a source. They would not apply in every case where there was a request for the communications data of a journalist, or where such collateral intrusion was likely.  Given this and the fact that access was not limited to ‘serious crime’, the Court found a violation of Article 10.

The Court rejected complaints under Article 6 as well as Article 14 combined with Articles 8 and 10 of the Convention as manifestly ill-founded.

The judgment was not unanimous. Judge Koskelo, joined by Judge Turkovic, disagreed with some points of the reasoning of the majority and particularly the appropriateness of relying on old case law in a context following a technological ‘sea change’ in which people’s lives are more thoroughly exposed to view.  Judges Pardalos and Eicke did not agree that the applicants in the first and second case should have been absolved from the requirement to exhaust domestic remedies, nor – in the light of the recent chamber judgment in Centrum For Rattvisa (app no. 35252/08) – that there had been a violation of Article 8 in relation to s. 8(4) warrants.

Barnard & Peers: chapter 9

Photo credit: Journalism, Media and Culture

Lock ‘em up: the proposal to amend the EU’s Returns Directive

Steve Peers, Professor of Law, University of Essex

One of the key EU laws regulating migration is the Returns Directive, now nearly ten years old, which regulates the main aspects of irregular migration by non-EU citizens. It requires Member States in principle to issue a return decision to every non-EU citizen not authorised to be on their territory, and to enforce that decision by removing the person concerned. In some cases, irregular migrants should be given a period for voluntary departure, so they won’t be subject to forced removal. Member States are required to issue entry bans to many of those subject to a return decision, but must provide for basic remedies to challenge expulsion. There are also rules on the grounds for detention of irregular migrants and their conditions during detention.

When it was adopted, NGOs supporting migrants believed that the Directive set an inexcusably low standard. However, in practice the CJEU has interpreted the Directive more liberally than some expected. I discussed this in detail in a paper published in 2015, and there have been several more CJEU judgments interpreting the Directive since then: Celaj (discussed here), Affum, Ouhrami, Gnandi and KA. For instance, the case law limits the use of the ordinary criminal law to jail irregular migrants, requiring Member States to use the administrative detention rules in the Directive in most cases. The jurisprudence also establishes a limited right to a hearing for irregular migrants (discussed here), and in some extreme cases provides for a basis to prevent expulsion of irregular migrants, and secure their basic rights to health care in the meantime (as discussed here).

The case law has been sufficiently liberal that in light of the perceived refugee ‘crisis’ of the last three years, it’s the EU Commission and Member States who are now concerned about the law, because in their view it is not stringent enough. This approach was set out in an ‘action plan’ and a recommendation issued by the Commission in 2017, as well as a revised Returns Handbook. They represented a change of tone from the 2014 Commission report on the implementation of the Directive, discussed here.

In 2014, the Commission urged Member States to apply the Directive generously, while in 2017 it recommended that they apply it as strictly as possible. But there are limits to the latter strategy without amending the legislation to lower standards, and today the Commission did just that, tabling a proposal to amend the Directive. To become law, it must still be agreed by the European Parliament and the Council (Member States’ interior ministers). It forms one of a number of measures proposed or adopted in recent years to strengthen migration control in light of the perceived crisis, including changes to the EU’s Frontex border agency (discussed here), and greater use of the EU’s Schengen Information System to enforce entry bans and expulsion orders (the agreed text is here).  Another proposal to give further powers to Frontex – including to assist more with expulsions – was also released today.

The UK, Ireland and Denmark opt out of this Directive – although it will apply to UK citizens in the participating Member States after Brexit, in the event that they are irregular migrants.

The new proposal

The first change in the proposal is to define ‘risk of absconding’. The effect of such a definition is to make it easier to refuse a prospect of voluntary departure, and correspondingly easier to justify detention. Reducing the number of people given the chance of voluntary departure will in turn increase the number of those subject to an entry ban.   

The list of cases which might constitute a risk of absconding is long (there are sixteen factors listed) and non-exhaustive (‘at least’). Some of the grounds are very broad (‘illegal entry’). Member States will have to apply these criteria on a case-by-case basis, but four of the grounds create a rebuttable presumption: using false documents et al; opposing expulsion violently or fraudulently; not complying with a measure like a reporting requirement; or violating an entry ban.

There’s a new obligation for irregular migrants to cooperate with the authorities, which reflects CJEU case law such as KA. The proposal does not, however, add the right to a hearing expressly into the Directive. Member States have a new obligation to issue a return decision as soon as a migrant loses a right to a legal stay, or an asylum seeker’s application is turned down at first instance. In theory this just repeats the underlying obligation to issue a return decision to all irregular migrants, but the Commission states that not all Member States do this. The issue of a return decision after a first-instance refusal of an asylum application takes account of the Court’s judgment in Gnandi: asylum-seekers cannot be regarded as irregular migrants until a refusal of their application at that stage. The implications of this for appeals are discussed further below.

Voluntary departure is tightened up. First of all, Member States need no longer give a seven-day minimum of time for an irregular migrant to depart. Secondly, the three cases where Member States can opt to refuse to give the irregular migrant a chance to leave voluntarily – risk of absconding, manifestly unfounded or fraudulent application for legal stay, and risk to public policy, public security and public health – are replaced by an obligation to refuse the chance of a voluntary departure in such cases. As noted above, the effect of this change is bolstered by including a wide definition of what might be considered as a risk of absconding. Although the CJEU has narrowly interpreted the exception for public policy, et al, as discussed here, this matters less now that the ‘risk of absconding’ ground is widely defined.

There’s a new obligation to try to confirm the identity of the irregular migrant who doesn’t have a travel document, and also to obtain such a document. The thinking is presumably that this should facilitate the expulsion process. Non-EU countries sometimes insist on such documentation before readmission, and as the Commission notes, its proposal is consistent with separate recent proposals to amend the EU’s visa laws (discussed here) to punish non-EU countries for non-cooperation.

Next, there’s a change to the rules on entry bans. Member States may impose an entry ban on an irregular migrant without making a return decision, if they detect the irregular migrant on his or her way out of the EU. This would not be an expulsion measure, but a means of trying to prevent the person concerned from coming back in future. Imposing an entry ban would only apply in such cases ‘where justified on the basis of the specific circumstances of the individual case and taking into account the principle of proportionality.‘

As noted above, there’s also an implied change to the rules on entry bans too. Since an entry ban must be imposed when an irregular migrant is refused the possibility of voluntary departure (subject to exceptions in individual cases), narrowing down the cases where voluntary departure is possible will have the knock-on effect that more entry bans are issued.  

Next, there’s a new obligation to set up a ‘return management system’, comparable to Member States’ obligations relating to border control and asylum. This will have no direct impact upon irregular migrants.

There are several changes to the rules on remedies. First, any remedy must be before a judicial authority, not an administrative authority. This implicitly takes account of recent CJEU case law on appeals against refusals to issue a visa (El-Hassani), where the Court said that the EU Charter of Rights requires judicial control of immigration decisions.

Next, a new clause states that failed asylum seekers have only one instance of appeal against a return decision, if they have already had effective judicial review within the asylum process. This transposes the recent Court judgment in Gnandi. A further new clause, also taking account of CJEU case law, states that where the irregular migrant has concerns about refoulement (being sent to an unsafe country), at last the first level of appeal must have suspensory effect, ie stopping removal from the country. The irregular migrant can ask for suspensory effect in the event of a further appeal, but the national court must rule on that request within 48 hours. Furthermore, these possibilities don’t exist where there have already been proceedings concerning asylum or legal migration status, unless there are new issues in the case. Finally, failed asylum seekers will have only five days to appeal a return decision.

The proposal then moves on to detention. There will now be three grounds for detaining irregular migrants, rather than two; and anyway this list will become non-exhaustive (the word ‘only’ will be deleted). The first ground – risk of absconding – will be broadly defined, as we have already seen. The second ground, which was already broadly defined, remains ‘avoids or hampers the preparation of return or the removal process’. The new ground is where the irregular migrant ‘poses a risk to public policy, public security or national security.’ This new ground matches one of the grounds to detain asylum seekers in EU asylum legislation, which the CJEU has interpreted narrowly (as discussed here); but this hardly matters when the other two grounds for detention are broadly defined, and the whole list is non-exhaustive.

Another change relates to time limits: Member States’ maximum time for detention must be at least three months. This will not mean that all irregular migrants must be detained for that long, only that this must be a possibility on the books as a maximum period of detention. The other current rules on detention time limits – six months as the normal time limit, a further twelve months as a possibility in special circumstances – are retained.

Finally, a new clause sets out special rules for failed asylum seekers at border posts, effectively derogating from some key standards in the Directive. They must be given a standard ‘tick-box’ form setting out the return decision, rather than a reasoned explanation. In principle there’s no chance for voluntary departure, except where the migrant holds a valid travel document (handed over to the authorities) and cooperates fully. Such migrants will have only 48 hours to appeal a return decision, and suspensive effect only applies where there are significant new findings or there was no effective judicial review already. Detention is apparently always justified, with a four-month time limit; but then the proposal provides for the regular time limits to be applied on top of this, if return is not possible.

Comments

This proposal is entirely concerned with facilitating the expulsion of irregular migrants, and detaining them to that end – in addition to imposing entry bans to make sure they do not return. The narrower possibilities to obtain a period of voluntary departure will mean surprise knocks at the door, detention time and forced removal for more irregular migrants. More legal challenges will be fast-tracked, with the time limits in this proposal arguably below the standards set by CJEU case law (see the Diouf judgment). More migrants will be detained, and the Member States with the most generous approach to detention time limits will have to be more stringent.

While the proposal does not directly affect the case law that limits Member States’ use of criminal law to detain irregular migrants, it will to some extent circumvent the limits in that case law indirectly, by giving Member States more powers to detain irregular migrants in the context of administrative law instead. Note, however, that the rules on detention conditions would not be changed; and the continued requirement to channel immigration detention largely away from the criminal law process should prevent the family separation we have seen in recent months in the USA, which results from applying criminal law detention to irregular migrants who are parents.

Will the proposal impact upon the declining rates of expulsion? (45% in 2016 and 36% in 2017, according to the Commission) It’s hard to tell, because there’s no proper impact assessment alongside the proposal: this is not evidence-based policy-making, or at least not transparently so. Some of the proposals might possibly backfire: for instance, if the consequence of an irregular migrant leaving the EU is being detected and then subjected to an entry ban, the irregular migrant concerned might just decide not to leave at all.

In any event, the effectiveness of expulsion policy depends partly upon cooperation of non-EU States, and this proposal can’t affect that – although, as noted above, there are other EU initiatives underway on that front. Detaining more people has a cost for national budgets, but this proposal overlooks this awkward fact. Anyway, without additional cooperation from outside the EU, constructing more detention centres will not by itself increase the rate of expulsion, but merely increase the cost of irregular migration for national budgets and the misery of the persons concerned.

Peers & Barnard: chapter 26

JHA4: chapter I:7

Photo credit: Robert Hickerson on Unsplash 

Religious discrimination at work: Can employees be fired for getting divorced?

Ronan McCrea, Professor of Constitutional and European Law at University College London

The Framework Directive on Discrimination in Employment came into force in 2003 but it took 14 years for the Court of Justice to issue its first major decision on its religion-related provisions. However, we have now had four major decisions in the last year and a half so the precise impact of the Directive’s religion-related provisions is now becoming clear.

We now know that a consistently-applied neutrality requirement that prevents employees wearing symbols of religion or belief at work will be considered to be indirectly, not directly discriminatory (the Achbita case), that the court takes a narrow view of what counts as a genuine and determining occupational requirement justifying direct discrimination on religious grounds (Bougnaoui and Egenberger cases) and that the ability of religious employers to restrict roles to co-religionists in order to protect their ethos was subject to a proportionality test (the Egenberger  case.) (On Achbita and Bougnaoui, see discussion here; on Egenberger, see previous discussion on this blog here)

The latest judgment, in the case of IR v JQ addressed the matter of discrimination on grounds of religion addressed by the Court in Egenberger, but also covered the final major outstanding issue in relation to the religion-related provisions of the Directive; the scope for those employers, termed organisations ‘the ethos of which is based on religion or belief’ by the Directive, to impose an obligation on their employees to behave with loyalty towards the religious ethos of their employer.

However, it did so in a slightly unusual way because in this case the employee in question contested the fact that he had been placed under a greater duty of loyalty to his employer’s ethos because he belonged to the same faith as his employers. In other words, he alleged that the obligation of loyalty had been applied to him in a discriminatory way rather than simply alleging that an excessive obligation had been imposed.

In this case the employee, ‘JQ’, was the head of internal medicine in a hospital run by ‘IR’. IR is a not-for-profit, Catholic organization that runs a number of organisations including hospitals as part of what the Court of Justice called ‘an expression of the life and nature of the Roman Catholic Church’. JQ is a Roman Catholic. He was married in a Roman Catholic ceremony but divorced in early 2008. He subsequently married a new partner in civil ceremony. When his employer became aware of this he was fired from his post in March 2009.

His former employer argued that the dismissal of JQ was justified because by remarrying, he had breached the duty (contained in his contract) to be loyal to the ethos of the Catholic Church. JQ argued that his dismissal amounted to impermissible discrimination on the basis that an employee who was not a Catholic would not have been fired for entering into a second marriage.

EU law does allow (but does not require) Member States maintain in force exemptions from the duty not to discriminate. Article 4(2) of the Directive states: 

‘…. in the case of occupational activities within churches and other public or private organisations the ethos of which is based on religion or belief, a difference of treatment based on a person's religion or belief shall not constitute discrimination where, by reason of the nature of these activities or of the context in which they are carried out, a person's religion or belief constitute a genuine, legitimate and justified occupational requirement, having regard to the organisation's ethos. This difference of treatment shall be implemented taking account of Member States' constitutional provisions and principles, as well as the general principles of Community law, and should not justify discrimination on another ground.’ 

  

The key issue in the reference was whether the scope of the exemption from the duty not to discriminate on grounds of religion or belief granted by German law to religious organisations was compatible with Directive 2000/78. JQ’s Catholic employers believed it necessary to place employees with managerial roles who shared their Catholic faith under a greater obligation of loyalty than that placed on non-Catholic employers. German law implementing Directive 2000/78 provides them with significant scope to do so. It provides that:

  

‘The prohibition of a difference of treatment on grounds of religion or belief shall not affect the right of the religious communities mentioned in subparagraph 1, institutions affiliated to them, regardless of their legal form, or associations that devote themselves to the communal nurture of a religion or belief, to require their employees to act in good faith and with loyalty in accordance with their self-perception.’(paragraph 9(2) of the Allgemeine Gleichbehandlungsgesetz,)

This legislation has been interpreted in the light of the German constitutional guarantee that states: 

‘Religious societies shall regulate and administer their affairs independently within the limits of the law that applies to all. They shall confer their offices without the involvement of central government or local authorities.’ (Grundgesetz Article 140).

The German courts have consistently taken the approach that, in the light of this constitutional guarantee of self-determination, religious institutions may decide in accordance with their own faith-defined self-perception what is necessary to fulfil their religious mission. This means that religious employers may themselves definitively determine (subject only to plausibility review by the courts) what constitutes acting ‘in good faith and with loyalty to the ethos of the organisation’ within the meaning of Article 4(2) of the Directive.

The litigation between JQ and IR spent several years moving between various levels of the German court system (including a hearing before the Bundesverfassungsgericht (Federal Constitutional Court) which did not refer the matter to the Court of Justice).

When it came before the Bundesarbeitsgericht (Federal Labour Court) for the second time, the court decided to make a reference to the Court of Justice under Article 267 in order to ascertain whether the broad scope granted by German law to religious employers to determine the scope of the duty of employees to be loyal to the employers’ ethos was compatible the provisions of Article 4(2) of the Directive. In particular, the national court wanted to know whether a religious employer of a particular faith was entitled to apply a more stringent duty of loyalty in respect of employees who are also members of the faith than is applied to those who are of a different religion or of no religion.

The Court found that German law provided excessive scope to religious employers in this regard. This was not surprising as the Court of Justice had recently come to the a similar conclusion in the Egenberger case where a non-religious woman had been denied a job in a Protestant foundation.

In that case, the Court of Justice ruled that a decision by a religious employer to discriminate against an individual on grounds of their religion must satisfy a proportionality test. This test included an obligation on the religious employer to show that discriminating on grounds of religion was necessary because of the importance of the job in question for ‘the manifestation of the religious body’s ethos or its right of autonomy’.

In addition, the Egenberger ruling stressed that the right to effective judicial protection under Article 47 of the Charter of Fundamental Rights meant that an employee claiming to be the victim of discrimination must be able to contest whether such discrimination complied with the tests of genuineness, necessity and justification before national courts. Compliance with such tests could not be decided definitively by the religious body itself, something which goes against the German approach of allowing the self-perception of the religious institution to determine this issue, subject only to plausibility review by the courts.

The Egenberger ruling therefore made it clear that discriminatory decisions by employers must be subject to objective justification, including compliance with a proportionality test (rather than the self-perception of the religious body) as well as being contestable before an independent court.

The key question in JQ v IR was whether the principles outlined in Egenberger by the Court of Justice for dealing with cases of less favourable treatment on grounds of religion in general, would also apply when the less favourable treatment related to the imposition of an obligation of loyalty towards the ethos of the employer. Unsurprisingly, the Court held that the same principles apply and held that where an employee has been accorded less favourable treatment on account of his religion (in this case by requiring greater loyalty to the employer’s Catholic ethos from Catholic employees), such discrimination must comply with a proportionality test and that compliance must be capable of being assessed by an independent court, not the religious body itself. It noted that the ability of employers to impose a duty ‘to act in good faith and with loyalty to organisation’s ethos’, provided by Article 4(2) is subject to the proviso that this duty can be imposed only ‘provided that [the Directive’s] provisions are otherwise complied with’.

This means that the lawfulness of a difference in treatment depends not on the self-perception of the employer but:

‘on the objectively verifiable existence of a direct link between the occupational requirement imposed by the employer and the activity concerned. Such a link may arise either as a result of the nature of the activity, for example where it involves taking part in the determination of the ethos of the church or organisation in question or contributing to its evangelising mission, or of the circumstances in which the activity is to be carried out, for instance, where it is necessary to ensure that the church or organisation is presented in a credible fashion to the outside world’

In addition the difference in treatment must be shown to be genuine, legitimate and justified. In this regard, the Court reiterated its ruling in Egenberger that:

‘”genuine” means that professing the religion or belief on which the ethos of the church or organisation is founded must be necessary because of the importance of the occupational activity in question for the promotion of that ethos or the exercise by the church or organisation of its right of autonomy, as recognised by Article 17 TFEU and Article 10 of the Charter’

‘”legitimate” shows that the EU legislature intended to ensure that the requirement of professing the religion or belief on which the ethos of the church or organisation is founded is not used to pursue an aim that has no connection with that ethos or with the exercise by the church or organisation of its right of autonomy’

‘”justified” implies not only that a national court can review whether the criteria laid down in Article 4(2) of Directive 2000/78 are being complied with, but also that the church or organisation imposing the occupational requirement is obliged to show, in the light of the factual circumstances of the individual case, that the alleged risk of undermining its ethos or its right of autonomy is probable and substantial, so that the imposition of such a requirement is necessary’.

This means that the imposition of a greater duty of loyalty on Catholic employees only be justified if ‘bearing in mind the nature of the occupational activities concerned or the context in which they are carried out, the religion or belief is a genuine, legitimate and justified occupational requirement in the light of that ethos’.

While it acknowledged that it was ultimately for the national court to reach a conclusion on the facts, the Court of Justice gave a strong steer to the national court noting that:

‘Adherence to that notion of marriage does not appear to be necessary for the promotion of IR’s ethos, bearing in mind the occupational activities carried out by JQ, namely the provision of medical advice and care in a hospital setting and the management of the internal medicine department which he headed. Therefore, it does not appear to be a genuine requirement of that occupational activity within the meaning of the first subparagraph of Article 4(2) of Directive 2000/78’

And that:

‘that positions of medical responsibility entailing managerial duties, similar to that occupied by JQ, were entrusted to IR employees who were not of the Catholic faith and, consequently, not subject to the same requirement to act in good faith and with loyalty to IR’s ethos’

The Court also confirmed the position it took in Egenberger that the acknowledgement in Article 17 of the Lisbon Treaty that the Union respects the status of churches and religious associations under national law merely ‘expresses the neutrality of the European Union towards the organisation by the Member States of their relations with churches and religious associations and communities, that article is not such as to exempt compliance with the criteria set out in Article 4(2) of Directive 2000/78 from effective judicial review’.

Giving Effect to the Ruling: Indirect Effect and Mangold Principles

The national court also asked a number of questions in relation to its ability to give effect to the Directive as interpreted by the Court of Justice. When making its reference, the national court indicated that it suspected, correctly as it turned out, that German law was inconsistent with the Directive. As this was a dispute between two private parties, vertical direct effect of the Directive per se was not available. In its ruling the Court of Justice took the opportunity to remind the national court that the obligation of consistent interpretation set out in Marleasing and subsequent cases, included an obligation to adapt established national case-law.

Interestingly, the Court ruled that even if it was not possible to interpret German law consistently with the directive, the national court could still give effect to Directive 2000/78 in this case by disapplying the relevant national law. In doing so it relied, as it had in Egenberger, on the controversial line of cases arising from the Mangold ruling in which the Court held that Directive 2000/78 merely codified a pre-existing EU legal obligation to respect the general principle of equal treatment which was not dependent on any implementing measures by the Member State. This obligation applied notwithstanding the fact that JQ had been fired before the Charter of Fundamental Rights came into force because the principle of equal treatment was already binding as it was a general principle of law arising from the common constitutional traditions of the Member State.

Significance

With four major rulings in 18 months, the outlines of the approach of the Court of Justice to the religion-related provisions of Directive 2000/78 are now reasonably clear, giving us a clearer picture of the approach of the Union to religion’s role in the legal system more generally.

First, it is clear that the Court is committed to an approach that involves balancing of clashing rights through the framework of proportionality. Under EU law there is a sliding scale of religious autonomy with decreasing autonomy for religious employers the more distant a role is from the core religious functions. Furthermore, any discriminatory decisions must be capable of being challenged in a meaningful way before the courts. Religious bodies cannot determine for themselves the degree of exemption from anti-discrimination rules necessary to protect their ethos.

This is in contrast to the approach of the US Supreme Court which has adopted an approach based on the idea of a ‘ministerial exemption’ under which the state has no right to assess decisions of religious bodies in relation to roles that have a religious element and indeed, to the approach of the European Court of Human Rights which upheld, in cases such as Fernández-Martínez v Spain, an arrangement under which the automatic termination of the contract of a religion teacher in a public school on foot of decision of a local bishop to withdraw his endorsement of that teacher was subject to very limited review. The commitment of the Court to proportionality as a means to resolves clashes in this area means that it is likely that, when it is faced with a case of the non-discriminatory application of an ethos-loyalty obligation to an employee, it will insist that such an obligation be limited in order to ensure that it does not have a disproportionate impact on other fundamental rights such as the right to privacy of freedom of expression.

Second, the Court is keen to limit its tolerance of policies that have potentially discriminatory implications on grounds of religion, to instances where the policy is consistently applied. Thus, in Achbita and Bougnaoui it stressed that neutrality policies would be considered indirectly rather than directly discriminatory only if consistently applied to all statement of all forms of religious, philosophical and political belief. Similarly, in JQ v IR it found fault in the fact that the loyalty obligation would not have been applied to a non-Catholic in JQ’s role. The Court has also made it clear that, as in Bougnaoui, in cases where a policy is shown to be directly discriminatory it will not give a wide interpretation to the concept of a ‘genuine and determining occupational requirement’. This approach also involves a commitment to treat religious and non-religious beliefs equally, something that sets EU law apart from approaches in many other areas of the world.

Finally, the Court regards the Treaty commitment in Article 17 to respect the status of religious bodies in national law not as a mandate to exempt the legal privileges of religious bodies from review for their compliance with EU legal norms but as a statement of the EU’s neutrality in relation to the different ways in which Member States organise their relations with churches and religious bodies.

Finally, for EU law more generally, recent religion cases have underscored the Court’s determination to persevere with its controversial approach of regarding Directive 2000/78 as doing no more than giving specific expression to an already self-executing general principle of non-discrimination in EU law.

Barnard and Peers: chapter 9, chapter 20

Photo credit: Lifenews.com

EU/UK Dispute resolution post-Brexit in the light of the White Paper

Catherine Barnard and Emilija Leinarte*

*Professor of EU law, University of Cambridge and PhD student, University of Cambridge. This research has received support from the ESRC’s UK in a Changing Europe programme.

The recent report published by UK in a Changing Europe discussed different governance structures that could potentially regulate UK-EU relations post-Brexit. The now published White Paper provides insight into the sort of institutional framework the UK will seek from the EU upon its withdrawal. Is there merit in the UK’s proposals? Are there alternatives? We look into the options for the dispute resolution mechanism post-Brexit.

Institutional arrangements

The White Paper suggests that the governance of the UK-UK relations could be laid down in an association agreement (AA). The agreement would provide an overarching institutional structure which would cover the majority of the individual agreements for different elements of economic, security and cross-cutting cooperation. The form of economic cooperation is likely to be concluded in the form of a mixed free trade agreement (FTA).

The White Paper suggests governance through two main institutions:

-          a Governing Body which would set the general direction for the future relationship and,

-          a Joint Committee which would be directed by the Governing Body and would manage the implementation of the relationship.

Member States will be given authority through the Governing Body, which would consist of the heads of states and the presidents of the EU institutions and would meet at least biannually. Ad hoc meetings at ministerial level would also be held. The Joint Committee would consist of officials from the EU and the UK. In addition, the UK Parliament and the European Parliament would maintain a regular and formal dialogue.

The overall structure proposed in the White Paper is hybrid (see p. 21 of the report) because Member States of the EU as well as EU institutions would have authority in the governance of the relationship. This is different to other EU association agreements where Member States do not have a direct role in the supervision and implementation of the agreement. For example, under both the EU-Ukraine AA and the EU-Moldova AA the Association Council plays a role similar to that of the Governing Body. The Association Council consists, on the EU’s part, of members of the Council of the European Union and members of the European Commission. The structure of the EU’s AAs is commonly supranational because representatives from the EU institutions rather than member states are given the task of overseeing the implementation of the agreements.

Dispute resolution

The White Paper also proposes a framework for dispute resolution between the parties to the AA. The suggested mechanism would cover binding commitments between the parties, such as trade obligations. Protection of private rights is not covered and so British individuals or companies who consider their rights under the AA to have been infringed would only be able to enforce their rights in the UK through the UK courts and in the EU by the EU courts (para. 33 of the White Paper). This is typical of the EU’s AAs. For example, Article 402 of the EU-Moldova AA also excludes private rights from dispute resolution. The Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP), which replaced the Trans-Pacific Partnership (TPP) when the US withdrew from negotiations last year, also expressly excludes private action against the contracting parties (Article 28.22).

Private rights are also excluded from the dispute resolution mechanism under the Agreement on the European Economic Area (EEA Agreement) between the EU and members of the European Free Trade Area (EFTA) Norway, Liechtenstein and Iceland. To fill the gap, the European Commission, on the EU’s side, and the EFTA Surveillance, on the EFTA side, can receive complaints concerning the application of the EEA Agreement (Article 109(3) of the EEA Agreement) and may impose a fine on private persons if they breach the EEA Agreement (Article 110 of the EEA Agreement).

The EU’s recently concluded FTAs, such as the EU-Canada Comprehensive Economic and Trade Agreement (CETA), establishes a separate mechanism for investor claims and disputes arising in the financial services sector. Compensation awarded to investors is the primary remedy for such claims. The White Paper does not discuss this option. It is unclear whether the UK-EU FTA will contain an investment protection chapter.

Dispute resolution body

The White Paper says that disputes between the EU and the UK must be raised in the Joint Committee. Intermediation by an executive body is common to dispute resolution under the EU’s AAs. For example, under the EU-Moldova AA consultations are sought by sending a written request to the other party, copied to the Association Committee in Trade configuration (equivalent to a trade subcommittee of the Joint Committee). A similar arrangement for filing trade disputes is provided in the EU-Ukraine AA (Article 306).

If negotiations fail after a reasonable period of time, either of the parties may refer the dispute to an independent arbitration panel. Dispute resolution by independent arbitration panels is also typical in the EU’s AAs, including the EU-Moldova AA (Article 385) and the EU-Ukraine AA (Article 306). State-to-state dispute resolution under the EEA Agreement is different in this respect as it does not provide for the establishment of independent arbitration and instead gives the judicial function to an executive body (Article 111(2)).

The composition and process for appointment of an arbitration panel are not laid down in the White Paper, nor are the criteria for access to it, nor whether its findings will be published. All that is known so far is that the panel would include members from both parties. To this end, Article 28.9 of the CPTPP may serve as a template as it provides detailed rules on the composition of panels.

Remedies

The White Paper provides that in case of non-compliance, a complaining party may take measures to mitigate harm caused by the breach. These measures may include financial penalties or suspension of specific obligations (i.e. retaliation). As is common with trade regimes such as the WTO and CETA, such measures must be temporary and proportionate. Compensation and suspension of obligations for violations of trade obligations is typical to the EU’s AAs and are provided in both the EU-Moldova AA (Article 393) and the EU-Ukraine AA (Article 315).

In relation to suspension of obligations, WTO law allows a complaining party to cross-retaliate against any economic sector of the non-compliant state. In case of non-compliance by the EU, the so-called ‘carousel’ principle applies – goods and member states which are targeted by cross-retaliation rotate so that consequences are not concentrated in one member state and with respect to one product. The White Paper does not consider whether the same principle should apply to the UK-EU relationship. It only notes that suspension of obligations should be localised to the extent possible to the area of the future relationship that the dispute concerned (para. 46 of the White Paper). This is likely to be interpreted as meaning that in case of breach of trade obligations, suspension of obligations should be limited to trade.

In sum, the dispute resolution mechanism outlined in the White Paper is a mix of common features found in other EU association agreements as well as some innovative features. The proposal is up for negotiation with the EU, but it is Westminster rather than Brussels that will likely subject the proposal to most intense scrutiny and criticism.

The role of the CJEU

The influence of the Court of Justice of the European Union (CJEU) over the judicial system of the United Kingdom was, according to the Prime Minister, one of the key reasons which led to the Brexit vote. The Government has repeated time and time again that leaving the EU means leaving the jurisdiction of the EU Court. This has been a government red line. Yet, both in her Florence speech delivered on 22 September 2017 as well as in her Mansion House speech of 2 March, Theresa May suggested that judgments of the CJEU could be taken into account by the UK courts to ensure consistent interpretation of relevant EU law. This particular red line has already shown a pinkish hue.

So what exactly does it mean to leave the jurisdiction of a court but take its judgments into account?

Perhaps intentionally, the White Paper does not provide a straightforward answer to such a fundamental question. The document does suggest that the CJEU could have a dual role post-Brexit: (1) in relation to the UK courts when enforcing private rights stemming from the future relationship, and (2) in relation to the state-to-state dispute resolution mechanism. This is different to the EU’s recently negotiated FTAs, such as CETA where the CJEU has no role whatsoever. It is, however, typical in the EU’s AAs, perhaps because the aim of AAs is to lead to membership in the EU (this is not the case for economic cooperation under the FTAs). What the White Paper does demonstrate is that the sloughing of the CJEU skin is considerably more difficult than many Brexiters liked to think.

Let us address the dual role of the CJEU suggested in the White Paper.

The role of the CJEU in domestic cases

An obligation for the UK courts to follow the CJEU’s case-law differs depending on whether the dispute concerns the ‘common rulebook’ or other binding commitments under the future agreements. A ‘common rulebook’ is a customs arrangement proposed in the White Paper which effectively means that the UK would maintain the same rules for trade in goods as those of the EU in order to maintain frictionless trade and avoid Ireland/Northern Ireland border. It is not clear whether the UK intends to update its rules in line with changes in EU law.

The White Paper also suggests that when the UK courts enforce private rights stemming from commitments other than those related to the common rulebook, they ‘could’ take into account the relevant case law of the CJEU. This broadly confirms the language of s.6(2) of the recently adopted EU (Withdrawal) Act 2018 which provides ‘a court or tribunal may have regard to anything done on or after exit day by the European Court … so far as it is relevant to any matter before the court or tribunal.’

In addition, the White Paper opens a backdoor to the CJEU’s case law. In case of ‘significant’ divergence between the interpretation of the agreements by the EU and UK courts, the Joint Committee (the governing body for the future relationship) ‘could be empowered to act to preserve the consistent interpretation’ (para. 34 of the White paper). The practicalities of indirectly giving such unprecedented power over domestic courts to an executive body are not detailed.

An obligation for the UK courts to follow the CJEU’s case-law is stronger in relation to the common rulebook: the UK ‘would’ commit to its courts paying due regard to the CJEU’s case law. This effectively means that the CJEU’s interpretation of rules governing trade in goods would be binding on UK courts. Neither the EU-Moldova, nor the EU-Ukraine AAs set such obligation, perhaps because the EU does not have a common rulebook with them. Instead, they commit themselves to progressive legislative approximation, that is making their laws similar to those of the EU. In the process of legislative approximation, due regard must be given the case-law of the CJEU (e.g. Article 153 of the EU-Ukraine AA on the approximation of public procurement rules) but that is different from directly binding domestic courts to follow the CJEU’s case-law.

On the other hand, the implementation of rights and obligations stemming from the EU-Turkey Customs Union, in so far as they are identical to corresponding provisions of EU Treaties, must be interpreted in conformity to CJEU’s case-law (Article 66 of Decision No 1/95 of the EC-Turkey Association Council). Unlike association with Moldova and Ukraine which do not have a customs union with the EU, Turkey must ensure that its trade policies are compatible with those of the EU in order to maintain frictionless trade.

The UK courts would not, however, be able to make a preliminary ruling to the CJEU to ask for the CJEU’s interpretation on a certain aspect of EU law (para. 35 of the White Paper). However, the draft Withdrawal Agreement, which governs the UK’s exiting from the EU as well as matters related to the transitional relationship (i.e. post 29 March 2019 until 31 December 2020), does allow EU citizens to ask UK courts to make a reference to the Court of Justice. Article 151(1) of the Withdrawal Agreement states that when dealing with cases concerning citizens’ rights which were commenced within 8 years from the end of the transition period, the UK courts will be able to request the preliminary ruling (i.e. decision on interpretation) from the CJEU (without the presence of a British judge). The time-limits of the transition period are not (yet) known, but it may be extended for some years.

So, in answer to the question, has the UK been set free from the CJEU, the answer must be: not as much as many might like.

The role of the CJEU in dispute resolution between the parties

The White Paper also discusses resolution of disputes between the UK and the EU, as opposed to cases in the UK courts enforcing private rights.

Disagreements between the UK and the EU over the common rulebook for trade in goods would have to be resolved consistently with the CJEU’s case law. The Joint Committee (by mutual consent) or the arbitration panel would be able to make a preliminary reference to the CJEU. The CJEU’s interpretation of points of EU law would be binding on the Joint Committee and the arbitration panel (para. 42 of the White Paper).

This is not novel. Article 403 of the EU-Moldova AA provides that the CJEU’s rulings are binding on matters of EU law in disputes between the EU and Moldova (this would cover the common rulebook). Similarly, Article 322 of the EU-Ukraine AA provides that where a dispute raises a question of EU law, the arbitration panel must request the CJEU’s ruling which would be binding on the arbitration panel.

The approach adopted under the EEA Agreement is different. Reference to the CJEU is neither mandatory nor automatic – only if the dispute has not been settled within three months after it has been brought before the EEA Joint Committee, the parties ‘may’ agree to request the CJEU to give a ruling on interpretation of relevant points of EU law (Article 111(3) of the EEA Agreement).

In sum, the degree of influence of the EU Court over the UK’s judiciary will to a large extent depend on how much EU law will be let into the domestic system: the deeper the relationship, the bigger the role for the EU Court. A full stop to the jurisdiction of the CJEU would be a reality in case of a ‘no deal’ Brexit, and even in this situation the Withdrawal Act makes clear that the British courts may still take account of the case law of the Court of Justice because given the volume of EU law which is incorporated into UK law, the case law of the Court will have influence for decades to come.

Barnard & Peers: chapter 27

Photo credit: YouTube