Negotiating the future relationship between the UK and EU: the proposed EU negotiating mandate

Professor Steve Peers, University of Essex

Last week the process of negotiating the future relationship between the UK and the EU formally began. On the EU side, the Commission published the proposed negotiation mandate (an annex to a decision) for the future EU/UK relationship. For the UK, the government published a parliamentary statement.

There was also a speech by the Prime Minister, but this was intended for a domestic audience: amateur dramatics, not professional trade policy. Suffice it to say that: the withdrawal agreement does not govern trade between the UK (other than Northern Ireland) and the EU after the end of the transition period it sets out (discussed here), and the minimal trade arrangements between the EU and Australia cannot honestly be described as an “Australia deal”. One might as well refer to a food bank as an “Australian Waitrose”, or a desperate dash to the bushes as an “Australian toilet”. Indeed, Australia is seeking to improve on these minimal arrangements by negotiating a free trade agreement (FTA) with the EU.

The following analysis summarises the proposed EU negotiating mandate, further comparing it to the mutually agreed political declaration on the future relationship (which I previously annotated here). It explains where the EU position has departed from or elaborated upon the political declaration. Obviously, the EU position differs in some respects – but not all – from the UK position, which is why negotiations are expected to be difficult.

Legal basics

On the EU side, the first thing to notes is that this is a proposal for a negotiation mandate. Under Article 218 TFEU, which sets out how the EU negotiates international treaties, first of all the Commission proposes a mandate to negotiate with a non-EU country. Next, the Council, ie Member States' ministers, decides on adoption of that mandate. Under the Commission’s proposal the ministers would have to act unanimously (more on that below).

The Council is expected to complete this next step later in February, after ministers and national civil servants representing them examine the proposal. It’s possible (and common) for the Council to change the text of a negotiating mandate proposed by the Commission – although such changes are unlikely to be radical.  In fact, it seems certain that the Council will amend this proposal (for the text of the main decision as agreed, see here; the more detailed annex is not yet agreed).

After that point the third step starts – the formal negotiations with the UK, in which the Commission is the negotiator. Note that the Commission will have a mandate from Member States when doing so: Michel Barnier will not be on a frolic of his own. (This point was often missed during the withdrawal agreement negotiations). As the proposed mandate states, during the negotiations the Commission will be reporting back to a 'special committee' of Member States’ officials. In fact this committee was set up recently. It's made up of Member States' officials who keep an eye on the Commission as negotiator. This isn't unique to these talks; it's a requirement in Article 218 of the Treaties as regards all international treaty negotiations.

There's no formal role for the European Parliament at this point, although it can pass non-binding resolutions (such as the one passed earlier this week). It will have a veto over the final agreement. At first sight the proposal doesn't take a view on whether ratification by each national parliament will be needed. This will depend on the content of the final text, as the Commission’s Q and As explicitly point out.

Timing of the talks

The transition period in the withdrawal agreement expires at the end of the year, meaning that the de facto current treatment of the UK as a Member State of the EU will then expire. While the withdrawal agreement’s provisions on issues like citizens’ rights and Northern Ireland will still apply, most of the relationship between the UK and EU will end at that point unless new treaties replace it.

Although the transition period could be extended by one or two years if both sides agree (the deadline to agree this is 30 June 2020), the UK objects in principle to any extension. The negotiation mandate decision mentions a possible extension, but the Commission proposal doesn't discuss the UK objection to extending the transition period. Rather it aims to get as much as possible done during the available time. It does refer to the jointly agreed ‘best endeavours’ to agree a new fisheries treaty by July 2020 (para 74 of the political declaration), saying that a fisheries treaty ‘should’ be agreed by that point. But it does not explicitly make this a condition for further negotiations, and the Q and As refer to ‘parallel’ negotiations, not to negotiations on fisheries exclusively at first.   

Form of the relationship

The Commission proposal refers to a ‘single package’ with general provisions, economic arrangements, and security arrangements. This possibly implies a single treaty, although the Commission does not say so expressly.  It would also be possible to have separate treaties which are linked in some way.

Furthermore, the Commission is seeking legal authority to negotiate an association agreement on the basis of Article 217 TFEU, although it avoids using those actual words. It notes that when it comes to the end of the negotiations, things might be different. (For instance, the scope of the agreement might be narrower, or it might take the form of multiple treaties: either way, this could change the ‘legal base’ of the treaty or treaties concerned).

Legally, an association agreement (if that's what is eventually negotiated) requires unanimity in Council and consent of the European Parliament. It might need ratification by national parliaments but that depends on the content (as the Q and As point out). It can be put in force provisionally (at least partially) if needed.

Territorial scope

The Commission proposes that Gibraltar is outside the scope of the planned negotiations (para 162 of the proposal). This is not a new EU position, and is not a territorial claim: the point has often been misreported. As the Commission points out, the EU position goes back to 2018, when the European Council took the view that any agreement regarding Gibraltar would be separate, and subject to the agreement of Spain:

After the United Kingdom leaves the Union, Gibraltar will not be included in the territorial scope of the agreements to be concluded between the Union and the United Kingdom. However, this does not preclude the possibility to have separate agreements between the Union and the United Kingdom in respect of Gibraltar. Without prejudice to the competences of the Union and in full respect of the territorial integrity of its Member States as guaranteed by Article 4(2) of the Treaty on European Union, those separate agreements will require a prior agreement of the Kingdom of Spain.

In any event, every Member State will have a veto over the future relationship treaty with the UK anyway, if it remains an association agreement as the Commission proposes.

Data protection

The proposed mandate (para 12) refers to an adequacy decision on UK data protection law. Note that an adequacy decision is a unilateral decision by the EU under the GDPR. The political declaration (para 9) referred to an objective to adopt such decisions by the end of 2020. There is another reference to data protection in the security part of the proposed mandate (see below). Cooperation between regulators, which was mentioned in the political declaration (para 10), is not mentioned explicitly in the proposed mandate.

EU programmes

The proposed mandate (para 13) would cover UK participation in EU programmes, such as research funding and Erasmus. The wording of the proposed mandate reflects the political declaration (para 11). Northern Ireland peace funding is also mentioned (para 14, proposed mandate; compare para 13, political declaration). However, there is no explicit mention of association with European research infrastructure (which was mentioned in para 12, political declaration). Note that the EU has not yet agreed the conditions for non-EU countries to access the next phase of EU programmes: for the draft text on this, see Article 16 of the proposed new Erasmus programme.

There’s no explicit mention of negotiation of UK links to the European Investment Bank, although the political declaration (para 15) only referred to the UK’s intention to seek such links, without suggesting that the EU side shared this objective.

Economic partnership

The core of the UK/EU economic partnership would be a free trade agreement (FTA) covering both goods and services (para 16 of the proposed mandate). It's often inaccurately claimed that there's no intention for an FTA in services between the UK and EU, but both sides have always intended to negotiate one (paras 19 and 28 of the political declaration). But note that an FTA falls short of single market participation. Unlike the political declaration, the proposed mandate makes an explicit link between the economic partnership and fisheries and a ‘level playing field’.

Free trade in goods

The proposed mandate (para 19) provides for no tariffs or quotas. However, unlike the position as a Member State (and during the transition period), the mandate refers to rules of origin, to determine where goods come from (para 20). This is an extra burden on trade between the UK and EU compared to EU membership, and is a consequence of the UK's decision not to negotiate a customs union. This reflects the political declaration (para 22); indeed a reference to a need for rules of origin was added to the revised version of the political declaration (whereas the first version of the political declaration ruled them out).

The reference to using the EU’s standard preferential rules of origin is new, and presumably refers to the pan-European rules (PEM Convention) in use between the EU and other countries across Europe, the Middle East and North Africa. Using the standard rules will be simpler and quicker than negotiating from scratch (rules of origin often take some time to negotiate in FTA talks).

Next, the negotiating mandate refers to introducing anti-dumping duties, anti-subsidy duties and economic safeguards between the UK and EU, referring to WTO rules. Again, this is a new possible barrier in UK/EU trade. Such measures are provided for in most FTAs (not just the EU’s: the US applies anti-subsidy duties to some Canadian products, for instance). For EU FTAs, the only exception is the European Economic Area (EEA), which rules out anti-dumping and anti-subsidy duties for most products, because the countries concerned have signed up to EU single market laws. The possibility of such measures is therefore not a ‘punishment’, but the inevitable consequence of the UK’s decision to leave the EU without remaining a participant in the single market.

The possibility of such measures would be there even without an FTA between the UK and EU. The objective of such measures is, respectively, to react to goods sold below their normal value (anti-dumping), subsidised by States (anti-subsidy), or which damage domestic producers (economic safeguard) – subject to more detailed definitions and procedural obligations in the WTO Codes dealing with these issues. 

The proposed negotiation mandate also extends to customs facilitation and agreement on non-tariff barriers (technical and sanitary rules), going beyond WTO provisions. However, it does not mention the possibility of UK links with EU medical, chemical, and aviation safety agencies, even though the political declaration referred to this possibility (para 23).

Free trade in services

The proposed mandate refers to an FTA in services going beyond WTO commitments, but as usual the EU will exclude audio visual services. This exclusion was not mentioned in the political declaration, but is hardly unexpected. On the other hand the proposed mandate mentions free trade in certain services sectors that were also expressly mentioned in the political declaration: professional and business services, telecommunications services, courier and postal services, distribution services, environmental services, financial services and transport services.

This will include movement of service providers (as required by WTO rules on FTAs in services), but this falls short of free movement of people. There is a general reference to agreement on investment (not just in services industries), but as under the political declaration there is little further detail. The proposed mandate also includes recognition of professional qualifications, as referred to in the political declaration (para 34). Financial services equivalence decisions will be unilateral.

Intellectual property

It’s usual for FTAs to include provisions on intellectual property, going beyond WTO and other international rules. Here the big EU ask here is protection for future ‘geographical indications’ (GIs: these are rules which specify that, for example, ‘feta cheese’ must originate from Greece). Note that current GIs are protected in the withdrawal agreement, so the negotiation here would be about future GIs. There’s also a reference to maintaining current protection in many other areas of IP, where there is extensive EU legislation going beyond international IP treaties. There’s no reference to what happens to the plan that the UK hosts part of the planned Unified Patent Court, which is linked to an attempt to create a unified EU patent. Some specific references to IP issues in the political declaration (databases, resale rights, exhaustion of rights) do not appear explicitly in the proposed mandate. The notion of still applying EU standards might be an issue in the case of the controversial recent EU copyright law, which the UK supported when it was adopted but now intends not to apply.

Public procurement

As is common for FTAs, the mandate envisages opening up public procurement markets more than under the WTO procurement agreement. This reflects the political declaration, although note that the rhetoric on this issue in the UK is inconsistent, with an obvious conflict between the competing slogans of "Buy British" economic nationalism on the one hand, and export oriented "Global Britain" on the other. Since the UK is signing up to the WTO procurement agreement in its own name and non-EU countries may also wish to include additional procurement obligations in FTAs, the “Buy British” folks may be disappointed – although opening up markets reciprocally enables exporting British companies to sell their goods and services too.

Mobility

The proposed mandate falls short of free movement of people here. It refers to waiving visa requirements for short term travel, which the EU has done already unilaterally on the condition of reciprocity (see discussion here). A visa waiver treaty between the two sides could go further – most notably waiving visa requirements for paid activities (which is now an option for Member States), which would be useful for the music industry, for instance. But it is not clear if the Commission is referring to a visa waiver treaty.  Note that the section on mobility is in addition to the planned negotiations on services, which would include some movement of people (discussed above).

The proposed mandate also refers to “setting out conditions” relating to migration of students and researchers (areas where the EU has already legislated on non-EU migration, as discussed here). There could also be agreement on social security coordination, but note that this would be for future UK/EU migration. Those who moved before the end of the transition period are covered by the withdrawal agreement (see discussion here), which also covers the common travel area referred to in the proposed mandate. Note that there’s no reference to possible negotiations on retaining free movement rights for UK citizens in the EU before the end of the transition period.

There’s no mention of the political declaration’s reference to facilitating travel (para 53 of the declaration), perhaps because of the UK government’s plan to match the EU’s planned advance travel authorisation system. Nor is there any reference to negotiations on family law civil judicial cooperation as mentioned in the political declaration (para 56), although it is understood that the Council draft of the mandate will insert text on this.

Transport

On air transport, the proposed mandate states that the UK will not have the same market access as an EU Member State, but is willing to negotiate. It also refers to aviation safety standards.

On land transport, it refers to market access for road haulage, but not cabotage (haulage within a single Member State/multiple Member States). This would be linked to a standstill on social rules relating to drivers plus tachograph discussions (this concerns the devices keeping track of how long drivers are driving for). There’s no reference to private motorists, although the political declaration referred to them.

The text refers to international law on coach transport, which suggests that the UK and EU would not negotiate additional provisions. On rail transport, there’s a reference to the Channel Tunnel; it’s understood that the Council will add a reference to Dublin/Belfast rail links here, in accordance with a reference in the political declaration.

There’s no reference to maritime transport, although again it’s understood that the Council will add a reference to possible negotiations on this issue, matching a reference in the political declaration. It remains to be seen whether the reference to cooperation with the EU maritime safety agency in the political declaration will be retained.

Energy

The proposed mandate has a number of references to renewable energy, along with a level playing field on carbon pricing, and a Euratom deal including a standstill on nuclear safety standards and isotope issues. (On post-Brexit relations with Euratom, see my earlier discussion). The Council will likely add a reference to nuclear waste, perhaps reflecting Irish concerns about Sellafield.

Fisheries

The focus of the proposal is EU traditional fishing in UK waters, with a link to the rest of the economic partnership, and a reference to agreed July target date. As noted above, the target date does not seem to be an absolute demand.  The Council is likely to strengthen the EU’s position here. The topic is a prime candidate for crashing the whole negotiations – as is the next topic...

Level playing field

The term ‘level playing field’ might be used differently in other contexts, but for these discussions it refers to law on State aid, competition law, and aspects of tax, labour and environmental law. It’s common for the EU to require some form of LPF clauses in its FTAs, but the question is whether to go beyond the usual provisions in the EU/UK FTA – with the rationale for the EU side being that the FTA would go further in abolishing all tariffs than other EU FTAs go.

The first point to emphasise is that in addition to being in other EU FTAs, the UK signed up to the concept of LPF in the political declaration. Both sides agreed that the LPF:

…should be commensurate with the scope and depth of the future relationship and the economic connectedness of the Parties. These commitments should prevent distortions of trade and unfair competitive advantages. To that end, the Parties should uphold the common high standards applicable in the Union and the United Kingdom at the end of the transition period in the areas of state aid, competition, social and employment standards, environment, climate change, and relevant tax matters. The Parties should in particular maintain a robust and comprehensive framework for competition and state aid control that prevents undue distortion of trade and competition; commit to the principles of good governance in the area of taxation and to the curbing of harmful tax practices; and maintain environmental, social and employment standards at the current high levels provided by the existing common standards. In so doing, they should rely on appropriate and relevant Union and international standards, and include appropriate mechanisms to ensure effective implementation domestically, enforcement and dispute settlement as part of the future relationship. The future relationship should also promote adherence to and effective implementation of relevant internationally agreed principles and rules in these domains, including the Paris Agreement.

So the commitment was to ‘uphold common high standards’ applicable in the EU and UK at the end of the transition period; ‘maintain’ standards ‘at the current high levels provided by the existing common standards’; ‘rely on appropriate and relevant Union and international standards’; and include provisions on implementation, enforcement and dispute settlement. So there were several references to EU rules, most in the context of a standstill, but partly more open-ended (ie possibly application of future rules too); and a general reference to dispute settlement, with no specific reference here to the CJEU (but see the reference to the CJEU role below).

The proposed negotiating mandate partly repeats this text, but also adds many points. On LPF enforcement in general, it states that the EU ‘should also have the possibility to apply autonomous interim measures to react quickly to disruptions of the equal conditions of competition in relevant areas’. On future measures, it states that the ‘envisaged partnership should commit the Parties to continue improving their respective levels of protection with the goal of ensuring high levels of protection’, with the governing body having power to extend the LPF or add to it over time (note that the governing body would have to act jointly).

On specific issues, EU State aid should apply ‘to and in’ the UK, although they would be enforced by an independent UK body, not the Commission; and disputes ‘about the application of State aid rules in the United Kingdom should be subject to dispute settlement’. For competition law, general provisions similar to EU law (although here there is no specific cross-reference to EU law) should apply as regards EU/UK trade, along with a commitment to ‘effective enforcement’. There should be limits on special rights for state-owned enterprises, with no specific reference to EU law or enforcement.

On tax, there should be a commitment to international standards, and also the UK should apply ‘the common standards applicable within the Union and the United Kingdom at the end of the transition period in relation to at least the following areas: exchange of information on income, financial accounts, tax rulings, country-by-country reports, beneficial ownership and potential cross-border tax planning arrangements’, along with ‘the fight against tax avoidance practices and public country-by-country reporting by credit-institutions and investment firms’, and (without reference to common standards) ‘the Parties’ commitment to curb harmful tax measures, taking into account the G20-OECD BEPS Action Plan’ and the UK reaffirming ‘its commitment to the Code of Conduct for Business Taxation’.

On employment law, there should be no reduction ‘below the level provided by the common standards applicable within the Union and the United Kingdom at the end of the transition period in relation to at least the following areas: fundamental rights at work; occupational health and safety, including the precautionary principle; fair working conditions and employment standards; and information and consultation rights at company level and restructuring’. There should also be provision on enforcement within the UK, ‘through adequately resourced domestic authorities, an effective system of labour inspections and effective administrative and judicial proceedings’.

On the environment, again the LPF should provide that ‘the common level of environmental protection provided by laws, regulations and practices is not reduced below the level provided by the common standards applicable within the Union and the United Kingdom at the end of the transition period’. The text refers to ‘at least the following areas: access to environmental information; public participation and access to justice in environmental matters; environmental impact assessment and strategic environmental assessment; industrial emissions; air emissions and air quality targets and ceilings; nature and biodiversity conservation; waste management; the protection and preservation of the aquatic environment; the protection and preservation of the marine environment; the prevention, reduction and elimination of risks to human health or the environment arising from the production, use, release and disposal of chemical substances; and climate change.’

Also, the LPF ‘should lay down minimum commitments reflecting standards, including targets, in place at the end of the transition period in those areas, where relevant’; ‘should ensure the Parties respect the precautionary principle and the principles that preventive action should be taken, that environmental damage should as a priority be rectified at source and that the polluter should pay’. For enforcement, again, the LPF ‘should ensure that the United Kingdom implements a transparent system for the effective domestic monitoring, reporting, oversight and enforcement of its obligations by an independent and adequately resourced body or bodies’. (Note that the proposed Environment Bill would include some provisions to this effect).

There are also some specific provisions on climate change: the UK should maintain ‘a system of carbon pricing of at least the same effectiveness and scope as provided by the common standards, including targets, agreed within the Union before the end of the transition period and applicable for the period thereafter’, and the two sides ‘should consider linking a United Kingdom national greenhouse gas emissions trading system with the Union’s Emissions Trading System (ETS)’ which should be ‘based on the conditions agreed within the Union, ensure the integrity of the Union’s ETS and a level playing field, and provide for the possibility to increase the level of ambition over time’. Besides carbon pricing systems, the LPF should ensure that the UK ‘does not reduce the level of protection below the level provided by the common standards, including targets, agreed within the Union by the end of the transition period and applicable for the period thereafter’.

The proposal also refers to ‘adherence to and effective implementation of relevant’ international rules, which ‘should include’ International Labour Organisation conventions, the Council of Europe European Social Charter and multilateral environmental agreements including those related to climate change, including the Paris Agreement. On top of that, where the parties have higher standards above the minimum commitments, ‘the envisaged partnership should prevent them from lowering those additional levels in order to encourage trade and investment.’

Has the EU ‘moved the goalposts’ here? The agreed text in the political declaration refers explicitly to both EU and UK standards, vaguely to dispute settlement, and indirectly to future measures. It’s not surprising that the EU puts forward a maximalist interpretation of this, or that the UK puts forward a minimalist interpretation – although it cannot seriously be argued that the political declaration made no commitment to a standstill as regards EU standards.

There’s nothing here on exactly how dispute settlement would work, besides a reference to EU retaliation. This is significant because in the first withdrawal agreement, which contained much of the detail which the Commission proposes here, dispute settlement was limited: only some issues could be subject to the dispute settlement regime in that text (in particular, disputes about the substance of labour and environmental commitments could not be subject to dispute settlement; only disputes about enforcement systems for those obligations could be). So even the references to EU law in the LPF part of that agreement did not mean that the CJEU would have jurisdiction via dispute settlement arbitrators to interpret them, since the dispute settlement arbitrators would never get hold of such disputes in the first place.

This also meant that EU retaliation for the breach of such obligations was impossible, since retaliation was only possible via the dispute settlement system. While the draft negotiation mandate refers to possible EU retaliation for breach of LPF rules, it’s not clear if the limits on such retaliation (both in terms of which issues are subject to dispute settlement and the constraints on retaliation within the dispute settlement system) would be different from the limits in the first withdrawal agreement. It should be noted that in the first withdrawal agreement, UK retaliation against EU breaches was also possible within the dispute settlement system; one might expect that the UK would argue that it should similarly have reciprocal powers to retaliate in the future relationship treaties.

Security cooperation

In the proposal, the security cooperation is not linked to the LPF or fisheries. But instead it would be made dependent not only on UK adherence to the ECHR, but also the Human Rights Act (HRA), along with the unilateral adequacy decision on data protection - expressly referring to possible CJEU challenges (see the challenges to adequacy decisions relating to the US, discussed here). The ECHR and data protection points reflect para 81 of the political declaration, which referred to the ECHR ‘underpinning’ the relationship; the HRA point goes beyond it. Also, there would be fair trial and double jeopardy standards.

The Commission position here reflects the issues that would be litigated anyway about data protection and human rights standards in the UK. They are already litigated as regards non-EU countries and other Member States.

For police cooperation, the proposal refers to passenger name records, DNA/fingerprint/vehicle info, and exchange of information in individual cases. There is no mention of the Schengen Information System (which the UK currently applies as regards criminal law data) and the exchange of information in individual cases can't simply copy it. As regards PNR, the Commission refers to a CJEU case discussed here, which sets out limits on what the EU can exchange with non-EU countries to comply with data protection standards. On PNR and DNA data et al, the proposal reflects the political declaration. On individual exchanges of information instead of the Schengen Information System, the proposal is explicit on the issue whereas the political declaration fudged it (because the two sides did not agree).

On criminal justice cooperation, there is a reference to fast track extradition. Note that the EU, Norway and Iceland have agreed an extradition treaty which is very similar to the European Arrest Warrant applied between EU countries, but with certain exceptions.  Also it refers to exchanging evidence and criminal records in a similar way to existing EU laws, which would limit the impact of the UK leaving the EU on these issues. Note that this would probably go further than the EU has gone with other non-EU countries.

Foreign policy

In this area, the Commission proposes "alignment" on sanctions (the only explicit use of the word in its proposal). There would be case by case involvement in defence missions or defence industry projects (reflecting the wording of the political declaration, which makes clear that the UK would not be tied to EU defence cooperation against its will), and limited access to Galileo.

Governance and dispute settlement

Finally, the future relationship treaties would have a joint committee to oversee and implement them (which is standard in international treaties). To settle disputes, there would be consultation then binding arbitration. The CJEU would be involved if an issue concerns the interpretation of EU law (as explicitly agreed in the political declaration). There is NO reference to CJEU involvement otherwise (note that the political declaration explicitly ruled that out). The mechanics of dispute settlement are not spelled out in detail; it is possible that they might be based on the provisions in the withdrawal agreement (see my annotation and analysis of them here).

As discussed in the LPF section above, it is possible that some parts of the agreement might not be subject to dispute settlement at all, in which case there is no issue of CJEU involvement or any other remedies issue (unless the agreement allows for remedies to be applied without such remedies being subject to dispute settlement). So the CJEU would only have jurisdiction over the UK in the future relationship treaty where the agreement a) refers to EU law AND b) provides for dispute settlement. Again: key parts of the level playing field in the first withdrawal agreement met condition a) but NOT b). The details of the future treaty therefore will be crucial.

Barnard & Peers: chapter 26

Photo credit: Wikimedia commons

Avoiding the next Brexit Cliff-Edge: Extending the Transition Period for the UK after 1 July 2020

René Repasi, Associate Professor of EU Law at Erasmus University Rotterdam, Netherlands

After the elections in the UK and the clear majority of the Conservative Party under Prime Minister Boris Johnson in UK House of Commons the Withdrawal Agreement (WA) concerning the UK’s exit from the EU was promptly ratified, with the UK leaving the EU on 31 January 2020. This completes phase 1 of ‘Brexit’: Dealing with the legacy of the UK’s membership.

We are now entering phase 2: The negotiation of and the decision about the future relationship between the EU27 and the UK. Originally, phase 2 should be concluded during the transition period of the Withdrawal Agreement, during which the UK remains part of the internal market and subject to EU law. This transition period expires on 31 December 2020 (Article 126 WA). The Joint Committee (JC) of the WA (composed of officials of the European Commission and the UK Government and co-chaired by a Member of the European Commission and a Minister of the Crown) can adopt, by mutual consensus, a single decision extending the transition period for up to one or two years (Article 132(1) WA). Such decision can be requested from both the EU and the UK. The purpose of this prolongation possibility was originally (in March 2019) and still is to avoid an undesired ‘hard Brexit’ because of unfinished trade negotiations. The decision of the JC to extend the transition period must be taken before 1 July 2020.

The newly elected Prime Minister Johnson does not intend to make use of this prolongation possibility and wants to strike a trade deal with the EU before 31 December 2020. In order to emphasise this commitment, the Withdrawal Agreement Act includes a section 33, according to which ‘[a] Minister of the Crown may not agree in the Joint Committee to an extension of the implementation period’. This means that – in the event a trade agreement between the EU27 and the UK is not ratified on 31 December 2020 – there will be a ‘hard Brexit’ on 1 January 2021 if the deadline of 1 July 2020 elapses without any prolongation decision of the JC.

Extending the Transition Period after 1 July 2020 if there is a political will

This situation begs the question whether there are other possibilities – past 1 July 2020 – to prolong the transition period, during which the UK remains part of the EU’s internal market and subject to EU law, until a trade agreement is ratified, if there is a political will on both sides to do so. As a baseline, any prolongation of the transition period after 1 July 2020 is legally excluded because the WA does not provide for any other mechanism to do so. There are, however, two legal pathways to explore that might nevertheless lead to a prolongation of the transition period:

-          A new transition period could be established by a new and distinct agreement between the EU and the UK;

-          The ‘old’ transition period of the WA could be prolonged by replacing the original end date in Article 126 WA through amendment of the WA.

New and Distinct Agreement would Undermine EU Rules on Membership

A new and distinct agreement that includes a new transition period starting on 1 January 2021 would need, on the EU’s side, an explicit or at least implied competence to grant such a ‘status’ to a third country (Article 216(1) TFEU), which the UK will be after 31 January 2020. Article 50 TEU, being the legal base on the part of the EU for the establishment of the original transition period in the Withdrawal Agreement, would not serve as a legal basis for such an agreement as the new and distinct agreement would be concluded with a third country and not with ‘[a] Member State which decides to withdraw’. We may now think of a construct that the ‘transition’ equals some sort of a ‘temporary association arrangement’ of the UK with the EU so that Article 217 TFEU might suffice as a legal base. Yet, looking at previous instances when Article 217 TFEU was used, an association implies stability and permanency, which runs counter to the very idea of a transition period. Finally, Article 207(1) TFEU could also not be used on its own as rights and obligations that the ‘transition period’ implies go beyond the ‘common commercial policy’. The transition period prolongs, in substance, the EU membership beyond the official exit date of a Member State. The substance of EU membership covers more than the ‘common commercial policy’.

What remains, would be basing a new and distinct agreement that introduces a new transition period (for example, together with a future customs arrangement between the UK and the EU) on a combination of legal bases and Article 352(1) TFEU, as it was done previously when the EU joined the WTO agreements (cf. CJEU, Opinion 1/94). Whilst this construct certainly allows for quite a comprehensive scope of an agreement, triggering mixity so that also national Parliaments have to ratify it, it would not work for extending the transition period. This follows from the fact that Article 352(1) TFEU ‘cannot be used as a basis for the adoption of provisions whose effect would, in substance, be to amend the Treaty without following the procedure which it provides for that purpose’ (CJEU, Opinion 2/94, para 30).

If we were to apply Article 352(1) TFEU in order to introduce a new transition period, which would keep the UK in the internal market and keep it subject to EU law, we would create the legal possibility to grant (temporarily) EU membership (which is, in essence, being part of the internal market and subject to EU law) to any other third country. This would undermine Article 49 TEU and the necessity for being a formal Member State in order to have such a status. The Treaties only provide for one exception to deviate from this rule: a country that used to be a Member State can keep up its rights and obligations deriving from membership for a limited period of time after the withdrawal. The Treaties created with Article 50 TEU a special exclusive Union competence to grant such a status to a prospective third country.

For these reasons, a new and distinct agreement between the EU and the UK cannot introduce a new transition period starting as of 1 January 2021. It should be noted that this reasoning does not apply to any special arrangement that only includes a subset of previous EU rights and obligations and a partial access to the internal market. Such arrangement would, however, also not qualify as a ‘transition period’.

Extending the Transition Period by Amendment of the Withdrawal Agreement

The second pathway to prolong the transition period would be an amendment of the original Withdrawal Agreement itself by exchanging the end date in Article 126 WA. Some argue now that any other way to change the transition period than its prolongation by the JC is legally impossible. The argument is based on the reading of Article 50 TEU that its applicability to the Withdrawal Agreement ceases in the moment the UK has exited the EU and that besides Article 50 TEU there is no legal base in the EU Treaties that would allow the EU to amend the WA.

General Public International Law Allows for Amendments of the WA

Another reading of the legal situation is, however, supportable. The argument is built on general public international law. The Vienna Convention on the Law of the Treaties (VCLT), which is considered to codify customary international law when it comes to the law of the Treaties, provides in Article 39 for a general rule, according to which a ‘treaty may be amended by agreement between the parties. The rules laid down in Part II [on the conclusion and the entry into force of Treaties] apply to such an agreement except insofar as the treaty may otherwise provide’. The WA provides for a legal base for the JC to ‘adopt decisions amending this Agreement’ (Article 164(5)(d) WA) but excludes ‘Part Four’ from its scope, which contains the end date of the WA. Although this is a specific treaty rule that allows for amendments of the treaty text, it only covers parts of it. Drawing the conclusion from the presence of such a limited amendment rule that the treaty parties are deprived from amending the treaty text themselves seems stretched. Such clauses enable quick technical amendments in place of lengthy ratification procedures. But they cannot bar the treaty Parties from amending the treaty text between them. In other words, the WA is silent on the revision of its text by the treaty parties in general and, more specifically, of Part Four of the WA with the end date of the transition period.

This brings us back to the starting point, according to which general public international law allows for an amendment of the WA including the end date of the transition period after 1 July 2020. This leads to the follow-up question on the legal base and the procedure to follow for such an amendment. On the part of the UK, the legal base and the procedure to follow is to be found in domestic law. The capacity of the UK to conclude treaties includes the capacity to amend them. Provided that domestic law does not prescribe any special rules for the amendment of the WA, the traditional rules on treaty ratification apply.

In Search of The Union Competence to Amend the Withdrawal Agreement

On the part of the EU, the situation is more complicated. The EU may only act if it is at least implicitly empowered to act. There must hence be a legal base for amending the WA. A literal reading of the original legal base for the conclusion of the WA excludes the use of Article 50(2) TEU. This article requires an agreement with a ‘Member State which decides to withdraw’. Once the other Treaty party involved in the WA is no more a Member State, Article 50(2) TEU seems to cease to apply. Besides Article 50(2) TEU, once again, Article 207 TFEU or Article 217 TFEU could be considered as possible legal bases, given that the amendment of an agreement is formally just another agreement. Yet, the WA exceeds the scope of Article 207 TFEU as its content covers more than ‘common commercial policy’. Also, Article 217 TFEU seems to be a rather weak legal base as it would require the establishment of an ‘association’. Although it is not completely unimaginable to qualify the ‘reciprocal rights and obligations’ in the WA as the creation of some sort of association between the UK and the EU, the entire purpose of the WA (except for the Protocol on Ireland/Northern Ireland) is not meant to create an association that lasts but to deal with legacy issues of the former membership of the UK in the EU.

A further thought would be to consider Article 352(1) TFEU. For the same reasons as mentioned above, Article 352(1) TFEU cannot serve as a legal base to extend the transition period of the WA by means of Treaty amendment. This leads us to the (interim) conclusion that EU law does not provide for any legal base to enter into an agreement that amends the WA so that any amendments of the WA are ruled out by EU law.

This understanding of EU Law makes the WA a ‘fossilised’ international agreement that could never be changed. Such treaties (especially bilateral ones such as the WA) are unknown to public international law. The existence of such treaties would run counter the general international law principle (which is even considered to have the quality of ius cogens) enshrined in Article 6 VCLT, according to which the legal capacity to conclude Treaties cannot be limited by Treaties. Violation of treaty obligations because of the conclusion of another treaty may be sanctioned according to the principles of state responsibility but the capacity to enter into other treaties may not be limited by treaty obligations. This finding holds also true for the EU. On this basis, it is valid to state, that as a matter of principle, whenever the EU enters into an international agreement, it must also have the competence to amend this agreement or to suspend it in accordance with either the procedures foreseen by the agreement or general public international law.

Analogous Application of Article 50 TEU

Against this background, EU law seems to have a lacuna in the case of Withdrawal Agreements if the legal basis for concluding such agreements ceases to apply at the moment of their entry into force. The existence of such a lacuna paves the way for an analogous application of Article 50(2) TEU. This provision must then be read as including a former Member State in its capacity as Treaty party to a Withdrawal Agreement with the EU. Such analogous application is not barred by an understanding that Article 50 TEU expires upon the withdrawal of a Member States. The article remains the source of existence of the WA and can be invoked for implementing measures of the WA as well as for amendments of the original Treaty text. Only for the conclusion and ratification of a new and distinct agreement with a former Member State of the EU, Article 50 TEU ceases to apply.

The decision-making procedure for amendments of a Withdrawal Agreement is hence also defined by Article 50 TEU: a qualified majority voting in Council of the EU27 upon consent of the European Parliament.

If therefore the deadline of 1 July 2020 elapses unused and it turns out in November 2020 that a ‘hard Brexit’ on 1 January 2021 can only be avoided by extending the transition period of the WA in its Article 126, general public international law says that this is legally possible and an analogous application to Article 50 TEU provides for the necessary legal base on the part of the EU.

*An earlier version of this post was published on Verfassungsblog

Barnard & Peers: chapter 27

Photo credit: Tobias Helfrich via Wikicommons

Gun Control in the EU: the CJEU’s Decision on the Legality of the Revised European Firearms Directive

Niels Kirst, PhD candidate, Dublin City University

Introduction

On the 3rd of December 2019, the European Court of Justice (hereafter ‘the Court’ or ‘CJEU’) gave its final verdict on the so-called Czech firearms case. In this detailed judgment which gives guidance on the law-making in the European Union (hereafter ‘the EU’), the Court touched on many principles of EU law and refined their meaning. The European Union legislator used its legal powers for the single market (Article 114 TFEU) to adopt Directive (EU) 2017/853, amend the previous firearms Directive 91/477 and Directive 2008/51/EC, in the aftermath of terrorist attacks in Paris and Copenhagen. The initial proposal of the Commission gained steam under the Dutch presidency of the Council in 2016. Finally, the Directive undergo the Trialogue process before being approved according to the co-decision procedure by the European Parliament (hereafter ‘the Parliament’) and the Council of the European Union (hereafter ‘the Council‘). The Parliament approved the amended Directive on 14th of March 2017, while the Council followed suit on the 25th of April 2017, with only the Czech Republic, Poland and Luxembourg disagreeing. Critical voices on political participation and accountability accompanied the legislative process. 

The Czech Republic had specifically harsh aversion towards the Directive, since civilian firearm ownership has a long tradition in the Czech Republic, and the Czech government, as well as Czech civil society groups, feared severe consequences for the Czech economy and the cultural heritage. After being outvoted in Parliament and Council, the Czech Government decided to challenge the Directive at the CJEU. It was alleged a breach of the principle of conferral of powers (Article 5 (2) TEU), of the principle of proportionality (Article 5 (4) TEU), of the principle of legal certainty and protection of legitimate expectations and finally, of the principle of non-discrimination. The Czech Republic, supported by Poland and Hungary in its claim, fired full blast to protect its political interest in front of the CJEU.

Earlier this year, AG Sharpston opined that the claims by the Czech Republic are unfounded and that the Court should uphold the Directive as it stands (see my analysis of the opinion here). The most important precedents for this case were the respective claims on the legal basis against the tobacco Directives from tobacco manufactures (see British American Tobacco and Philip Morris Brands). The trade, sale and possession of tobacco in the single market is situated in a field between health protection and the commerce, whereas, the sale, trade and possession of firearms is situated in a field between security and commerce. The critical question the CJEU had to answer was if Article 114 TFEU is an appropriate legal basis for measures which in large parts tighten security standards of firearm possession, or if this impinges of the national sovereignty of the Member States.

First Plea: Breach of the Principle of Conferral of Powers

The Czech Republic based its first plea on an alleged breach of the principle of conferral of powers by the European Union legislator. The baseline of this argument purported by the Czech Republic was that the aims of the new Directive diverted significantly from the aims of the earlier Directives of 1991 and 2008. Therefore, Article 114 TFEU did not constitute an appropriate legal basis anymore. The Czech Republic emphasised that an amended Directive shall not lead to new objectives which derogate from the original legal basis (Para. 21 – 24). By moving towards the fight against terrorism with the new Directive, the European Union legislator had no mandate to adopt these changes under the umbrella of the internal market competence.

The Court went into a general discussion on the appropriate legal basis for adopting a Directive or a Regulation (para. 31 – 33). Respectively, that new legislation might have several purposes, the Court explained. However, the predominant purpose determines the appropriate legal basis of the new legislation. These clarifications were followed by a discussion on the adequate use of Article 114 TFEU (para. 34 – 40), by assessing that the fight against international terrorism is an objective of general interest for the EU (by analogy health was identified as general interest in British American Tobacco and Imperial Tobacco). Subsequently, the Court tried to answer the question, if the safety and prevention of terrorist attacks had become the predominant purpose of the amended Directive and, if therefore, the legal basis of Article 114 TFEU was not appropriate anymore.

While the Czech Republic argued that the Directive should be analysed in isolation. Parliament and Council argued that the amended Directive has to be seen in light of the two earlier Directives (Para. 41 – 45). The Court clarified that an amended Directive must always be assessed in light of its earlier versions. Therefore, Directive 91/477 and the amendments by the new Directive serve as benchmark regarding the adequate legal basis. Assessing Directive 91/477 and the amendments made by the contested Directive, the Court concluded that by ‘adjusting the balance between the free movement of goods and security guarantees, [t]he EU legislature merely adapted the rule on the possession and acquisition of firearms set out in Directive 91/477 to changes in circumstances. [emphasis added]’ (para. 53) – which the EU legislature is entitled to do in its task of safeguarding the general interests recognised by the Treaty (see also Vodafone and Others) (para. 38). 

Finally, by pointing to the assessment of the firearms Directive in Buhagiar and Others the Court found that the predominant purpose of the measures read in conjunction with the earlier Directive was still ‘the free movement of goods, approximation of laws, regulations and administrative provisions of the Member States, whilst circumscribing that freedom with safety guarantees that are suited to the nature of the goods at issue’ (para. 59). Firearms are inherently dangerous goods, not only for the user itself (as the Czech Republic argued in the oral hearing) but also for fellow citizens, therefore, safety, as general interest recognised by the Treaty, can form a purpose of a Directive under Article 114 TFEU.   

Second Plea: Breach of the Principle of Proportionality

On a different note, the Czech Republic claimed that the European Union legislator did not have sufficient information at its disposal when drafting the Directive and therefore was unable to assess the proportionality of the Directive (para. 65 – 73). This argument was mainly based upon the European Commission skipping an impact assessment before drafting the Directive. The Commission pledged to carry out an impact assessment in an interinstitutional agreement with the Parliament under Article 295 TFEU. However, when the Commission drafted the Directive, it did not have time for a careful impact assessment and instead relied on the REFIT evaluation, which was carried out earlier. The Czech Republic contested that this was insufficient.

The Court highlighted the broad discretion the EU legislator has in evaluating and assessing legislative measures (para. 76 – 81). Further, the Court followed the Opinion of the AG that the pledge to carry out an impact assessment in an interinstitutional agreement under Article 295 TFEU is a non-binding commitment (para. 82). The Court reasoned that not conducting an impact assessment cannot automatically lead to an infringement of the principle of proportionality. Instead, the availability of existing information can still be sufficient to have a meaningful assessment of the principle of proportionality (para. 85). After going through the different studies, which the EU legislator took into account, the Court found that these studies, among them the REFIT evaluation, enabled the legislator to make a meaningful assessment of the proportionality of the new measures (para. 87 – 92).

In the second part of its second plea, the Czech Republic contested that specific articles of the new Directive failed the proportionality test of the EU. Namely, that these measures could have been achieved by less restrictive means (para. 95 – 101). The Czech Republic criticised in its claim the complete prohibition of semi-automatic firearms, as well as the stricter requirements for deactivated and antique firearms (para. 120 and 127). Technical details of the measures which the Czech Republic contested are omitted at this point but can be found in the judgement (para. 102 – 104). The Court first clarified that the judicial review of the proportionality of legislative acts is limited, and that the Court is not in the position to substitute its assessment for that of the EU legislature (para. 118). Instead, it is for the Court to define whether the legislator 'manifestly exceeded' its broad discretion (para. 119).

After going through the technical details of the new prohibitions of certain types of semi-automatic firearms, the Court concluded by pointing out that ‘those institutions [the Council and the Parliament] do not appear to have exceeded their broad discretion’ by these prohibitions (para. 126). The Court found the same regarding the proportionality of the new measures regarding deactivated and antique firearms (para. 131). The requirement of 'manifestly inappropriate in relation to the objectives' is a high bar to reach for new legislation to be deemed disproportionate. Therefore, the Court with its limited power and capacity of review declared the new measures to fulfil proportionality test. 

In the last place, the Czech Republic claimed that the contested Directive interfered with the right to property as it is enshrined in the Charter of Fundamental Rights (hereafter ‘the Charter’) (para. 132). The Court reasoned that Article 17 of the Charter is not an absolute right and may be restricted by limitations which meet the general interest recognised by the EU or the need to protect the rights and freedoms of others (para. 134) (in regard to the ‘right to property’ see a comment on SEGRO, in which the Court discussed Article 17 of the Charter). The Court found the evidence brought forward by the Czech Republic insufficient to prove a disproportionate interference with the right to property as enshrined in the Charter. The Court concluded that a ban on semi-automatic firearms for safety reasons is in the general interest which is recognized in the last sentence of Article 17 (1) of the Charter. 

Third Plea: Breach of the Principle of Legal Certainty and of the Protection of Legitimate Expectations

In its third plea, the Czech Republic claimed that specific measures of the new Directive impinged on the principle of legal certainty and legitimate expectations (para. 140 – 143). Specifically, the time requirements of the new Directive would lead to a retroactive application and the process of entering into force of the Directive to unattainable expectations on the part of individuals. Regarding legal certainty, the Court rebutted the argument by pointing out that the classification of firearms in the new Directive are clear and precise, and do, therefore, not lead to a retroactive application (para. 149 – 151). Regarding legitimate expectations of individuals, the Court highlighted that the EU legislator fulfilled its duties by publishing the contested Directive in the Official Journal of the European Union in a timely manner. This allowed individuals to know at which point the new rules will come into force and until when they could buy which kinds of firearms (para. 153 – 156).

Fourth Plea: Breach of the Principle of Non-Discrimination

In its fourth and final plea, the Czech Republic claimed that the so-called ‘Swiss exception’ (Article 6 (6) of the contested Directive), which allows Swiss militia soldiers to keep their semi-automatic firearms after completing their service with the Swiss army constitutes a discrimination against other EU nationals (para. 159 – 161). The Court recalled the principle of equality in EU law as requiring that 'comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified' (para. 164). The Court found that the Swiss Confederation and the Member States are not comparable regarding the subject matter of that derogation. The Swiss Confederation 'has the proven experience and ability to trace and monitor persons and weapons concerned, which gives reason to assume that the public security and safety objectives' will be achieved (para. 166). Finally, the Czech Republic failed to bring forward evidence that there are other states within the Schengen area which fulfil the same system of mandatory subscription and transfer of military firearms as the Swiss Confederation. Therefore, the Court rejected the plea (para. 167 – 168).

Comment

This comprehensive and very detailed judgement closes the legal challenge between the Czech Republic and the EU. Exhausting legal remedies after being outvoted in the Council has a long tradition in the EU (see for example Spain v Parliament and Council). Also, in this case, it is the recurring storyline. The Czech Republic took legal actions after being outvoted in the Council and its MEPs had not won in the Parliament. The judicial route is a logical way to go. However, the question of firearms regulation seems to be of a more political than a legal nature. 

The contested Directive certainly lays more emphasis on the security requirements for legal firearms holders. The contested Directive prohibits the possession of semi-automatic firearms within the European single market by civilian citizens. The plea of the Czech Republic focused on the outer limits of Article 114 TFEU. Is this article suitable for tightening of firearms possession, or does it fall into the area of judicial cooperation in criminal matters and must, therefore, be adopted under Article 84 TFEU? As known, from the tobacco case-law of the Court, Article 114 TFEU can be interpreted broadly. Also, in this case, the Court followed this line of reasoning, by allowing a prominent place of security as an objective of a Directive which was adopted under the single market competence of Article 114 TFEU.

The Court affirmed the legislative mandate of the EU to lower the ceiling for firearm possession in the EU. Firearms are goods which are sold and purchased on the internal market; therefore, the EU is the adequate body to regulate, and the internal market competence is sufficient to harmonise the possession of firearms in the EU. As a result, Member States have to converge and adjust in their firearm regulations (if they not already did). Some Member States already have a higher bar of firearms possessions as the one purported by the Directive, others like the Czech Republic now have to change their national laws. The consequence is that also in highly political fields, such as firearms regulation, Member States have to abide by the qualified consensus on the Council level. 

Barnard & Peers: chapter 12

JHA4: chapter II:7

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Can Belgian, French and Swedish prosecutors issue European Arrest Warrants? The CJEU clarifies the requirement for independent public prosecutors

Laure Baudrihaye-Gérard, Fair Trials 

The question of who has the power to issue a European Arrest Warrant (“EAW”) has been addressed again by the Court of Justice of the EU (“CJEU”). The answer to this question has far-reaching consequences for the flagship EU measure of judicial cooperation, which is used by authorities across the continent thousands of times every month to obtain the surrender of persons found in another EU Member State either for the purposes of criminal investigations (e.g. interrogation) or to serve a custodial sentence.

Courts in Luxembourg and the Netherlands suspended the execution of EAWs issued by prosecutors in Belgium, France and Sweden, so that they could ask the CJEU, through the urgent preliminary reference procedure, whether they qualified as “judicial authorities” for the purposes of issuing EAWs. The questions were raised in relation to EAWs issued by the Belgian public prosecutor for the purposes of executing a custodial sentence (case C-627/19 PPU), and in relation to EAWs issued by French (case C-625/19 PPU) and Swedish prosecutors (joined cases C-566/19 and C-626/19 PPU) for the purposes of conducting a criminal investigation.

More specifically, the Dutch and Luxembourg courts sought clarification of the CJEU’s rulings of 27 May 2019 in relation to the German and Lithuanian prosecutors (cases C-508/18 and C-82/19 PPU), discussed further here. The CJEU had ruled that German public prosecutors do not provide a sufficient guarantee of independence from the executive when issuing an EAW, while the Prosecutor General of Lithuania does provide such a guarantee of independence. As a result of this ruling, only judicial authorities deemed completely independent from the executive will be able to issue EAWs. 

The CJEU confirmed that the Belgian, French and Swedish prosecutors were sufficiently independent from the executive to be able to issue EAWs. In its analysis, the CJEU clarified, first, the scope of the concept itself of an “issuing judicial authority” for the purposes of issuing an EAW under the Framework Decision on EAWs and second, the notion of effective judicial protection for individuals who are the subjects of EAWs.

Concept of issuing judicial authority: two, not three conditions to be met

The principle of procedural autonomy and Article 6 of the EAW Framework Decision leave it up to Member States to designate competent “issuing judicial authorities” for the purposes of the EAW, but the CJEU recognised that a uniform and autonomous interpretation is, nevertheless, necessary.

Public prosecutors will qualify as an issuing judicial authority where two conditions are met:

-          First, public prosecutors must administer or participate in the administration of justice. An authority, such as a public prosecutor’s office, which is competent, in criminal proceedings, to prosecute a person suspected of having committed a criminal offence so that that person may be brought before a court, must be regarded as participating in the administration of justice of the relevant Member State.

-          Second, public prosecutors must be in a position to act in an independent way, specifically with respect to the executive. The CJEU requires that the independence of public prosecutors be organised by a statutory framework and organisational rules that prevent the risk of prosecutors being subject to individual instructions by the executive (as was the case with the German prosecutor). Moreover, the framework must enable prosecutors to assess the necessity and proportionality of issuing an EAW. In the French prosecutor judgment, the CJEU specifically indicated that:

-          Even though the Minister of Justice can issue general instructions of criminal policy to prosecutors, French law expressly prohibits individual instructions. In so far as general instructions cannot prevent a prosecutor from exercising their own appreciation of the proportionality of a decision to issue an EAW, they are not incompatible with the EU notion of an “issuing judicial authority”.

-          Hierarchical subordination of prosecutors, as is the case in France, does not prevent independence. The CJEU is concerned about prosecutors being shielded from external instructions coming from the executive; not about internal instructions coming from other prosecutors, which are necessary for the organisation of the public prosecutor office.

Importantly, the CJEU made clear that the existence of a procedure to challenge the decision itself to issue an EAW does not constitute a condition for a national authority to qualify as an “issuing judicial authority” for the purposes of the EAW Framework Decision. In the Swedish and French cases, the CJEU specified that effective judicial protection is not a statutory or organisational rule that applies to prosecutors, but is a separate issue that relates to the issuing procedure of the EAW. The CJEU’s approach in respect of the concept of “effective judicial protection” is developed further below.

The CJEU adopts, in these judgments, a formalistic approach towards the concept of independence. The Court focuses on the national legal framework to assess prosecutorial independence, and is satisfied where statutory and organisational rules formally prevent the government from issuing individual instructions to the prosecuting authority. However, the CJEU does not seek to enquire into the practice or other potential forms of influence of the executive over prosecutors. The scope of the CJEU’s assessment of the independence of prosecutors is moreover limited to decisions to issue EAWs, and not to the exercise of prosecutorial powers more broadly, which is beyond the scope of EU law.

It is notable that, in the decision relating to the French prosecutor, the reasoning of the CJEU appears to be founded on the inquisitorial tradition of the criminal justice system, built on the concept that prosecutors are “impartial” and exercise their powers in an “objective manner”, taking into account all exculpatory and inculpatory elements. This approach does not reflect the system in several EU Member States and stands at odds with the current evolution of European criminal justice systems, where we see a trend towards an increasing role of defence lawyers during the investigative phase, typical of accusatory systems. For instance, the Directive on the European Investigation Order (“EIO”) foresees, in Article 1(3), that the defence may initiate a request for an EIO in the context of a cross-border investigation. The CJEU’s reliance on abstract concepts of “impartiality” and “objectivity”, without addressing the evolution of inquisitorial systems and the way in which this may have impacted the prosecutor’s role, gives the ruling a certain artificiality which requires further refinement.

Effective judicial protection

The CJEU had already ruled (see its judgment in relation to the German and Lithuanian prosecutors) that persons subject to an EAW must benefit from a two-tier system of judicial protection of procedural safeguards and fundamental rights: (i) in the context of the adoption of the national arrest warrant; and (ii) in relation to the decision to issue an EAW, in particular, whether, in the light of the particular circumstances of each case, it is proportionate to issue that warrant.

The executing authority must verify that the decisions to issue EAWs have been subject to prior judicial protection, i.e. that a court or judge assessed the proportionality of the EAW and that the conditions for issuing the EAW have been met. In other words, the decision of a prosecutor, who is not a judge, to issue an EAW, must be capable of being the subject, in the Member State, of judicial proceedings which meet in full the requirements inherent in effective judicial protection.

But the CJEU leaves it up to Member States to organise such effective judicial protection, which, by virtue of the principle of procedural autonomy, may vary from one national system to another. One possibility is for Member States to provide for an appeal procedure against the decision to issue an EAW. But this is only one possibility, and the CJEU considered that each of the examined national systems in Belgium, France and Sweden also met the requirement for effective judicial protection:

-          In the Swedish case, national law requires that the decision to issue an EAW be preceded by a court decision to order pre-trial detention. The CJEU confirmed that effective judicial protection is ensured when the court verifies the conditions and the proportionality of the EAW before it is issued by the prosecutor, i.e. during the hearing in relation to pre-trial detention. The Court also noted that the pre-trial detention order can be challenged after it is issued, and where the challenge is successful, the EAW is automatically invalidated. For the CJEU, this system satisfies the requirement for effective judicial protection, even in the absence of a stand-alone appeal procedure against the decision to issue an EAW by the prosecutor.

-          In the French case, the CJEU considered that in French law, EAWs for the purposes of criminal investigations may only be issued after a judge, typically an investigative judge (juge d’instruction), issues a national arrest warrant. In this case, the CJEU noted that the judge who issued the national arrest warrant also requested that the public prosecutor issue an EAW at the same time. It is at this point in the procedure that the judge assessed that the conditions for issuing the EAW were met, including its proportionality. In the CJEU’s view, this procedure demonstrates that the proportionality of the EAW may be assessed at the time the national arrest warrant is issued, which happens prior or at the same time as the issuing of the EAW, and noted that, further, the decision to issue an EAW may also subsequently be subject to an annulment challenge. Therefore, the French system satisfies the requirement for effective judicial protection.

-          Where the EAW is issued for the purposes of serving a custodial sentence, as in the Belgian case, the EAW stems from the court decision sentencing the person to a custodial sentence. The sentence, in the CJEU’s view, reverses the presumption of innocence that the person benefits from during the criminal proceedings. The existence of judicial proceedings leading to the finding of the person’s culpability enables the executing authority to presume that the decision to issue an EAW stems from a national procedure in which the rights of the person were upheld; and the proportionality of the EAW results from the requirement in the EAW Framework Decision that an EAW may only be issued in relation to sentences of at least 4 months’ imprisonment. In such circumstances, the requirement for effective judicial protection is satisfied by the decision to sentence the person.

The CJEU failed to take this opportunity to set meaningful standards around the concept of “effective judicial protection”, and in particular how executing judicial authorities must exercise their oversight over the proportionality of EAWs. This approach fails to recognise that it is extremely difficult for persons arrested and detained under an EAW to obtain legal assistance in order to challenge the decision to issue the EAW in the issuing state, prior to being surrendered. Fair Trials has documented the problems with the EAW system that continue to this day, with considerable impact on the lives and rights of ordinary people.

In the Swedish and French cases, the CJEU argued that effective judicial protection is further guaranteed by other instruments of EU law, most notably the Access to a Lawyer Directive (2013/48/EU), which requires the Member State who is asked to execute the EAW to inform the person that they have a right to appoint a lawyer in the country that has issued the EAW. This is, indeed, a requirement of EU law, however, the CJEU fails to take into consideration the lack of effective implementation of this requirement across the EU – which seriously undermines the reality of such an “effective judicial protection”. The new laws enacted by the EU guaranteeing suspects’ rights, while extremely beneficial to improving fair trials at the national level, have not been sufficient. The problems with the EAW go beyond the rights guaranteed in those laws, and the laws themselves still need better implementation.

Fair Trials, working with lawyers across the EU in the context of the Legal and Experts Advisory Panel (“LEAP”), continues to document the lack of access to a lawyer in the issuing State for persons arrested under EAWs. The European Commission itself, in its implementation report of 26 September 2019 on the Access to a Lawyer Directive, expressly states that “[t]he legislation in four Member States does not at all reflect the right of requested persons to appoint a lawyer in the issuing Member State. Some five Member States do not clearly ensure that requested persons receive information about this right without undue delay (Article 10(4) of the Directive). Moreover, the cooperation mechanism set out in Article 10(5) of the Directive is often not subject to specific rules. In seven Member States, the legislation lacks the requirement that the competent authority in the executing Member State promptly informs the competent authority in the issuing Member State in cases where requested persons who do not already have a lawyer in the issuing Member State wish to appoint one. Furthermore, the legislation in 10 Member States does not transpose the requirement for the competent authority of the issuing Member State to provide without undue delay the requested persons with information to help them appoint a lawyer there”.

We welcome the CJEU’s recognition that the EU procedural rights directives, including the Access to a Lawyer Directive, participate in ensuring effective judicial protection for people who are subject to EAWs. But to date, the case law of the EU’s Court of Justice has not been sufficient to resolve the EAW’s flaws. The CJEU needs actively to support the effective implementation of the procedural safeguards for suspects and accused persons enshrined in EU law. For more on our work to promote and support the effective implementation of EU law, please refer to our materials available here: https://www.fairtrials.org/publication/eu-law-materials.

JHA4: chapter II:3

Barnard & Peers: chapter 25

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