Monday, 17 June 2019

The European Labour Authority: a Brand New EU Agency in Bratislava

Bartłomiej Bednarowicz, PhD Researcher at the Faculty of Law of the University of Antwerp


On Thursday, the Council decided that Bratislava will host the headquarters of a brand new EU agency: the European Labour Authority (ELA). The idea for the ELA was spelt out by President Juncker already in September 2017 in his annual State of the Union address. Juncker viewed ELA’s main mission to ensure EU labour mobility in a simple and effective manner and to strengthen fairness and trust in the internal market. Interestingly, the proposal to establish the ELA rolled out of the European Pillar of Social Rights (EPSR) and was presented as a part of the Social Fairness Package, together with a proposal for a Directive on transparent and predictable working conditions in the EU (adopted by the Council on the very same day as the Regulation establishing the ELA; see discussion of the Directive here), a proposal for a Council Recommendation for access to social protection for workers and the self-employed and a Commission Communication on the monitoring on the implementation of the EPSR.

In a speedy manner, in March 2018 the Commission put forward a legislative proposal to establish the European Labour Agency and on Valentine’s Day in 2019, the Commission, the European Parliament and the Council reached a provisional agreement and changed the name from Agency to Authority. Finally, in June 2019, the Council adopted the proposal for a Regulation and selected Slovakia to host the Authority. The ELA is to start its operations in October 2019 already in Brussels and is expected to reach its full operational capacity in Bratislava by 2024.


Pursuant to the Regulation establishing the ELA, the main objective of the Authority is to assist the Member States and the Commission in their effective application and enforcement of EU law related to labour mobility across the EU and the coordination of social security systems. The ELA has the mandate to act only within the scope of selected EU acts in the framework of: posting of workers, free movement of workers, social security coordination, social aspects of road transport and cooperation between the Member States to tackle undeclared work. This catalogue remains closed but can be extended on a basis of any future acts that confer tasks on the Authority. More importantly, to maintain its mandate, the ELA is to neither affect any rights or obligations of individuals or employers that are granted by either EU or national laws, nor the mandate of national authorities responsible for enforcement in these fields.

Furthermore, in order to attain its primary objective, the ELA has been fitted with some additional tasks. Firstly, it is to facilitate access to information on rights and obligations regarding labour mobility across the EU as well as to relevant services. Secondly, it is to promote and enhance cooperation between the Member States in the enforcement of relevant EU law across the Union, including facilitating concerted and joint inspections. Thirdly, it is to mediate and help to look for a solution in cases of cross-border disputes between the Member States. Finally, it is to support cooperation in tackling undeclared work.

Organisation and the seat selection

The European Labour Authority will have a permanent structure comprising of a Management Board (including representatives of the Member States, Commission, European Parliament and social partners), an Executive Director and a Stakeholder Group with purely advisory functions (including representatives of the Commission and social partners). On top of that, the Authority aims at being made up of around 140 staff members, some of them seconded from the Member States. In addition, there will be one national liaison officer seconded from each Member State who will facilitate the cooperation and exchange of information between the Authority and her Member State. The Executive Director, on the other hand, will be appointed for a five-year term by the Management Board from a list of candidates proposed by the Commission, following an open and transparent selection procedure including a hearing before the European Parliament. Finally, the Commission is willing to secure approximately €50 million for the Authority’s annual budget.

As for its seat, 4 Member States competed in the selection process: Slovakia, Cyprus, Bulgaria and Latvia. The Council, in a rather transparent way, steered the selection process and published on its website all the offers prepared by the governments. Then, the European Commission assessed the offers based on the geographical balance, accessibility of the location, availability of the proposed premises and overall city’s readiness to accommodate the needs of international staff. At the Council meeting convoked on 13 June 2019, 23 Member States voted in favour of the Regulation establishing the Authority with its seat in Bratislava, 3 voted against (Austria, Hungary and Sweden) and 2 abstained (Czechia and Poland). Admittedly, it will be the very first EU agency to be located in Slovakia that advertised itself with a rather dull slogan ‘ELA in Slovakia, a good idea’. At least, the ELA’s staff will enjoy the state-of-the-art L12 building at the ‘Eurovea City’ in Bratislava and a stunning view on the Danube river.


An idea for a (pan)-European labour inspectorate has been considered for a long time as simply ‘the wishful thinking’ of some social partners, especially workers organisations. It also has never really attracted a lot of attention, as the Commission feared scoring an own goal due to a lack of the Member States’ support to set up such an agency in the first place. However, the Juncker Commission has finally put the social rights back at the EU agenda and proposed a rather breakthrough initiative in a dazzling form of the European Pillar of Social Rights. The Commission has already delivered quite plenty on the Pillar and mainstreamed many fruitful debates surrounding the social aspects of employment that under the years of austerity and flexicurity have been put aside. The Authority indeed emanates from the EPSR and aligns well with the accompanying proposals presented by the Commission within a broad framework of European Union cross-border employment and the Social Fairness Package.

The potential of the Authority cannot be surely underestimated. Its main advantages can be summarised in three aspects. Firstly, in the field of legal issues of international employment, it will provide the national authorities with some valid operational and technical support, mostly to exchange information, develop some best practices, carry out inspections and also to settle any disputes. Bridging the information and cooperation gap between the Member States is indeed a noble objective and quite a desired one as well. In practice, it is often the case that national authorities are unable to facilitate dialogue with each other and exchange information due to the complex and lengthy internal procedures and the language barrier. Having national liaison officers from all Member States designated to be at the ELA’s disposal will definitely plug that gap and speed things up. Moreover, some national authorities might not have even dreamed of an ability of concerted and joint inspections, which is now a powerful tool in the ELA’s arsenal, subject however, to reaching an agreement between the Authority and the concerned Member State(s).

Secondly, what the enforcement of EU employment and social security law often lacked at national level, were synergies with the already existing EU agencies that would allow to rely on their expertise in areas such as health and safety at work, the management of an undertaking that is being restructured, skills forecasting or tackling undeclared work. Therefore, it is the ELA’s task to facilitate it all to untap the available potential and to strengthen the enforcement levels.

Finally, the Authority will simplify cooperation by integrating a number of existing committees and networks amongst the Member States which will hopefully lead to eliminating fragmentation in that area.

On the other hand, the Authority will definitely not serve as a panacea for all the flaws in the system. The role it will play mostly depends on how active the ELA with its Executive Director decides to be. There is a considerable room to be claimed by the Authority with some space for manoeuvre, but there are some open-ended questions as well. Sceptics and pragmatics may wonder how willing some of the national authorities will be to cooperate within the ELA’s network and agree to, for example, conduct inspections on their territory, which can expose the flaws of their own systems on an EU scale. It is also unsure whether the Member States known for a rather lenient approach towards social security laws will deem it in their best interest to assist ELA with the fight against fraud and abuse on their territories, as no such obligation arises. For them, it could mean the end of their competitive advantage of providing a legal framework for cheaper labour through foxy constructions such as letterbox companies.

Examples from the field of social security coordination and the experience with the Administrative Commission, a body comprising of government representatives, capable of reviewing cases of social fraud between the Member States, do not necessarily instil optimism. The number of successful outcomes of such cases is rather scarce and some national authorities are giving up on the Administrative Commission and often try to take matters in their own hands. Essentially, they reach out on their behalf to the institutions in the other Member States mostly without any tangible end-effects. Moreover, the Authority’s tasks might overlap with those of the Administrative Commission, which was a major point of discussion during the negotiations about the ELA. The exact tasks division, despite indicated as ‘without prejudice’, might prove to be more problematic to delineate and can lead to duplication and competence battles. It is also doubtful how effective the Authority can really be and police the EU labour mobility market consisting of approximately 17 million EU-movers with rather modest resources of 140 staff.

To conclude, as for now, the Authority has baby teeth. It will be up to its adopted strategy, action plans and frankly, leadership to make sure that it will eventually get real teeth. The ELA has definitely promising potential but it remains to be seen how it will be utilised and how big of a dossier can it claim and handle. The expectations are high so we should all give the European Labour Authority a big leap of faith and wait for its very first results.

Barnard & Peers: chapter 20
Photo credit:

Saturday, 8 June 2019

Jonathan Sumption’s view of human rights makes no sense in relation to the history of gay rights

Professor Paul Johnson, Head of the Department of Sociology at the University of York; editor, ECHR Sexual Orientation Blog

Jonathan Sumption, in his Reith Lecture “Human Rights and Wrongs”, attempts to persuade us that the European Court of Human Rights has usurped the power of democratically elected governments by way of an ever expanding interpretation and application of the European Convention on Human Rights. Sumption claims that the Court is continually adding rights, in areas that should be left to governments to legislate in, by interpreting the Convention in ways that it was never intended to do so.

This is not the first time that Sumption has made such claims. Back in 2016, Sumption argued that the Court was “the international flag-bearer for judge made fundamental law extending well beyond the text which it is charged with applying”. Sumption’s claims chime with the idea, popularized by some politicians, that Strasbourg judges routinely exceed their authority in order to impose changes on and meddle with law in the UK and, in doing so, “abuse” human rights.

If you are a gay or lesbian person reading this, you might be particularly irked by Sumption’s remarks. And if you are irked, it’s probably because you know that, whilst the Strasbourg Court has certainly played an important part in bringing about changes to UK laws that once discriminated against people on the grounds of sexual orientation, the Court has also frequently adopted a conservative interpretation of the Convention and, much to the disappointment of gay men and lesbians, rejected complaints about sexual orientation discrimination.

When it comes to sexual orientation issues, it is restraint rather than activism that has usually been a hallmark of the Strasbourg approach to interpreting the Convention. So, whilst Sumption would have us believe that the Court has invented mechanisms – like its “living instrument” doctrine – to enable it to give rights away to everyone, the reality is that the Court is usually very careful and cautious in evolving its interpretation of the Convention. And in terms of sexual orientation discrimination, the Court’s approach has often proved extremely frustrating and damaging.  

For example, take the criminalization of private same-sex sexual acts between consenting adults. Although such criminalization no longer exists in Europe, it did exist in several countries when the Convention came into force. In 1955, a man who had been imprisoned in Germany for “two cases of homosexuality” under law previously enacted by the National Socialist German Workers’ (Nazi) Party complained to Strasbourg about his treatment. Strasbourg rejected the complaint and, in relation to the right to respect for private life enshrined in Article 8 of the Convention – which Sumption claims has been stretched beyond recognition by the Court – stated that this permitted a state to make homosexuality a punishable offence. It took 26 years for Strasbourg to change its mind on this when, in the famous case brought by Jeffrey Dudgeon, it declared that the complete criminalization of same-sex sexual acts in Northern Ireland was in violation of Article 8. However, even in 1981, Strasbourg was quite comfortable to let the UK maintain a higher minimum age for male same-sex sexual acts, and it was only in response to a complaint by Euan Sutherland in the late 1990s that Strasbourg recognized that an unequal “age of consent” was in violation of the Convention.

Nearly every aspect of sexual orientation discrimination complained about in the Court has followed the same pattern. Complaints about such discrimination have been rejected time and time again, until Strasbourg has finally come around to recognizing a further aspect of “gay rights” under the Convention. And this is because the Strasbourg approach is always cautious and, as Judge Sicilianos has put it, the Court has “always sought to avoid the evolutive interpretation of the Convention from being perceived … as a sort of ‘carte blanche’ allowing for excessive liberties with the text of the Convention”. The Court has avoided such excessive liberties by developing interpretative mechanisms that pay attention to the intentions of those who wrote the Convention, and the “present-day” conditions in which the Convention operates. One such way that the Court does this is by taking into account European consensus on certain issues that come before it, so as to be guided by “present-day” conditions rather than its own view of what societal conditions should be.

The Court’s restrained approach is often a disaster for gay men and lesbians. The clearest contemporary example of this is the Court’s repeated refusal to recognize that the right to marry enshrined in the Convention places states under an obligation to grant same-sex couples access to marriage. Completely contrary to Sumption’s view of what the Court does, the Court has resolutely refused to evolve its interpretation of the right to marry in such a way that would make same-sex marriage an effective human right. As such, the Court’s current position makes the Convention inapplicable to same-sex couples who are excluded from marriage in European countries, including in one part of the UK.

So I am irked by Sumption’s claims that the Court is usurping state power and meddling in things that should be left to governments and the ballot box. Not only is this not true, some of us wish it were true. If you are a gay man or lesbian in a European country where you have very few rights, are subject to horrendous forms of discrimination, and are at the mercy of a majority who will not support legal change by parliamentary means, then you look to the Strasbourg Court for help. Unfortunately, because the Strasbourg Court often behaves in exactly the opposite way to how Sumption describes it, it is often unwilling to extend the protection of the Convention to gay men and lesbians in ways that would challenge homophobic domestic laws. To put it simply, when gay men and lesbians knock at Strasbourg’s door and ask for help, they very often have the door slammed in their faces.

The European Court of Human Rights is the conscience of Europe. It interprets a Convention that opens with the commitment to the maintenance and further realization of human rights. To further realize human rights the Court must evolve its interpretation of the Convention and, therefore, it must be encouraged to do so. We – the “everyone” that the Convention secures human rights and fundamental freedoms to – must demand, encourage and support the Court in interpreting the Convention in ways that challenge prevailing forms of inequality and discrimination in European countries. That’s why Sumption is wrong that human rights law should not, for the most part, be used to decide sensitive issues which should be decided through the ballot box. Such a view encourages Strasbourg to be cautious; on the contrary, we should encourage Strasbourg to be bold in realizing a vision in which human rights law prevails in Europe.

Listen to some of the gay men and lesbians from the UK who have taken cases to Strasbourg here:

Barnard & Peers: chapter 9, chapter 20
Photo credit: ECHR Sexual Orientation Blog

Tuesday, 4 June 2019

The Umpteenth Reinforcement of FRONTEX’s Operational Tasks: Third Time Lucky?

Dr. David Fernandez-Rojo, University of Deusto

On 6 October 2016, the European Border and Coast Guard (EBCG), the successor of FRONTEX, was officially established. Less than two years after the adoption of Regulation (EU) No. 2016/1624, the president of the European Commission announced in his speech on the 2018 State of the Union made on 12 September, the Commission’s intention to, once more, reinforce FRONTEX. On the same day, the Commission proposed an updated version of the Regulation establishing the recently adopted EBCG, which (following agreement between the European Parliament and the Council) was one of the very last texts voted at the European Parliament under the 2014-2019 mandate. In particular, on 17 April 2019, the Parliament adopted the proposal put forward by the European Commission to further strengthen the EBCG with a standing corps of 10,000 border guards with executive powers by 2027. It is now only a question of time until the Council adopts the Regulation (henceforth referred to as Regulation 2019/XXX). (The provisionally agreed text of the new Regulation is here.) This blog post centres on comparatively analysing the most controversial, significant and novel operational tasks conferred by Regulations 2016/1624 and 2019/XXX to the EBCG. (See earlier this analysis of the new powers concerning returns and data sharing, and of the accountability of the agency in human rights terms).

Article 3(2) Regulation 2016/1624 conferred a monitoring role to the EBCG in order to guarantee a common strategy for the management of the European external borders. The EBCG may now deploy its own liaison officers in the Member States with the aim of fostering cooperation and dialogue between the agency and the competent national authorities (Article 12(3) Regulation 2016/1624). The EBCG liaison officers, who are deployed on the basis of a risk analysis carried out by the agency, should regularly inform the agency’s Executive Director about the situation at the external borders and assess the capacity of the concerned Member State to effectively manage its borders (Article 12(3)(h) Regulation 2016/1624). These responsibilities have been further detailed in Article 32(3) Regulation 2019/XXX.

The information that the liaison officers gather contributes and facilitates the preparation of the EBCG’s vulnerability assessments. At least once every three years, the agency shall monitor and assess the availability of the technical equipment, systems, capabilities, resources, infrastructure, and adequately skilled and trained staff of the Member States for border control (article 33(2) Regulation 2019/XXX).

The monitoring powers conferred to the EBCG are reflected in article 33(10) Regulation 2019/XXX, which signals that if the recommended measures are not implemented in a timely fashion and in an appropriate manner by the concerned Member State, the EBCG’s Executive Director shall refer the matter to the Management Board and inform the European Commission. The Management Board shall then make a decision, based on the original proposal of the Executive Director, describing the necessary measures to be taken by the Member State and the time limit within which such measures shall be implemented. Importantly, Article 33(10) Regulation 2019/XXX explicitly declares that the decision of the Management Board is binding on the Member State. It remains to be seen as to the position of the national authorities within the EBCG’s Management Board and whether they will adopt measures that effectively ensure that a concerned Member States tackles the vulnerabilities identified in its external borders.

While it is still early to assess to what extent Regulation 2019/XXX improves the functioning of the vulnerability assessment and the swift deployment of liaison officers initiating by Regulation 2016/1624, a novel mechanism of impact levels to external border sections has been designed. Articles 35 and 36 Regulation 2019/XXX state that the EBCG, in agreement with the Member State concerned, may declare four different impact levels and reactions with the aim of swiftly addressing at a given border section a crisis situation.

-          When the EBCG declares a low impact level, the competent national authorities shall “organise regular control (…) and ensure that sufficient personnel and resources are being kept available for that border section” (Article 36(1)(a)).

-          If a medium impact level is established, the concerned Member State shall “ensure that appropriate control measures are being taken at that border section” (Article 36(1)(b)).

-          Where a high impact level is declared the national authorities are encouraged to request operational assistance from the EBCG (Article 36(1)(c)).

-          The EBCG may temporarily determine at a given border section a critical impact level, which shall be communicated to the European Commission. Under this scenario, the EBCG’s Executive Director will recommend the Member State concerned to request the EBCG’s operational assistance through the initiation of a joint operation or a rapid border intervention (Article 42(1) Regulation 2019/XXX).

While the obligations for the national border authorities under the low, medium and high impact levels are quite vague, under the critical scenario the Member State concerned shall respond, providing justifications for its decision, to the recommendation of the Executive Director within six working days (Article 42(2)). According to Article 43 Regulation 2019/XXX, should the Member State ignore the EBCG Executive Director’s recommendation, the Council, on the basis of a proposal from the European Commission, may adopt a decision by means of an implementing act, identifying measures to mitigate those risks and requiring the Member State concerned to cooperate with the agency in the implementation of those measures.

The EBCG’s Own Equipment and the Standing Corps of Border Guards

With the objective of reducing the dependence of the EBCG on the Member States’ technical equipment, Article 38 Regulation 2016/1624 stipulated that the agency may acquire its own technical equipment to be deployed during joint operations, pilot projects, rapid border interventions and return operations. In this regard, Article 63(4) Regulation 2019/XXX points out that where the EBCG acquires or co-owns equipment such as aircrafts, helicopters, service vehicles or vessels, the agency shall agree with a Member State the registration of the equipment as being on government service.

It is true that the European Commission has now a strong budgetary commitment to ensure that the EBCG acquires or leases technical resources but the agency still lacks the necessary structures and expertise to effectively manage its own equipment. Regulations 2016/1624 and 2019/XXX do not design a clear framework of the EBCG’s responsibility, and continues to be highly questionable whether the Member States will authorise the registration of equipment that is beyond their control.

Furthermore, a key operational power introduced by Regulation 2016/1624 was the establishment of a Rapid Reaction Equipment Pool, consisting of technical equipment to be deployed in rapid border interventions within 10 working days from the date that the Operational Plan is agreed upon by the Executive Director and the host Member State. The EBCG may contribute to the Rapid Reaction Equipment Pool with its own resources and the Member States could no longer shirk their responsibilities by alleging that they are faced with an exceptional situation substantially affecting the discharge of national tasks (Article 39(7) Regulation 2016/1624). In accordance with Article 20(5) Regulation 2016/1624, the competent national authorities shall make available a minimum of 1,500 border guards to the EBCG for their immediate deployment in joint operations and/or rapid border interventions.

While the establishment of a Rapid Reaction Pool of 1,500 was a positive measure for emergency situations at the external borders, Regulation 2016/1624 did not manage to overcome the insufficient pooling of Member States’ border guards for concrete locations and concrete periods in regular joint operations. For this reason, Regulation 2019/XXX centres on designing a permanent, fully trained and operational Standing Corps of 5,000 Border Guards by 2021 and 10,000 by 2027 based on the distribution key set out in Annex I to Regulation 2019/XXX.

Pursuant to Article 55(1) Regulation 2019/XXX, the Standing Corps is composed of four categories of border guards:

-          Operational staff members of the agency (Article 56)
-          Operational staff seconded from Member States to the agency for a long-term deployment (Article 57)
-          Operational staff from Member States ready to be provided to the agency for a short term deployment (Article 58)
-          Operational staff from the Member States ready to be deployed for the purpose of rapid border interventions (Article 59).

The EBCG’s operational staff members is a new category of staff designed by Regulation 2019/XXX in order to ensure the effective management of the external borders. Regarding the other three categories of border guards, the Member States are obliged to second to the agency operational staff with the aim of ensuring at all times the availability of border guards to be deployed. However, the main novelty is not so much the establishment of the Standing Corps, but rather the fact that the Standing Corps deployed as team members (category 1) are conferred executive powers (Article 55(3) Regulation 2019/XXX) such as verifying the identity and nationality of persons, authorising or refusing of entry upon border check, stamping of travel documents, issuing or refusing of visas, patrolling or, registering fingerprints (Article 56(5) Regulation 2019/XXX). Importantly, Article 83 Regulation 2019/XXX states that the performance of executive powers by the EBCG’s operational staff members shall be subject to the authorisation of the Member State that is hosting the operation.

As the Meijers Committee and the European Council on Refugees and Exiles rightly noted, conferring executive powers to the EBCG’s operational staff members may breach the primary law provisions that regard the Member States as ultimately responsible for their own internal security and external border management. While the European Commission considers that Article 77(2)(d) TFEU provides the legal basis to bestow upon the EBCG’s staff members executive tasks if they are clearly defined to match the objective of the establishment of an integrated management system for external borders, Article 77(2)(d) TFEU shall also be read in light of Articles 72 and 73 TFEU.

Article 72 TFEU states that the competences that the EU enjoys in the AFSJ “shall not affect the exercise of the responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security”. In other words, the EU cannot replace the Member States’ prerogatives of coercion and “EU agencies are therefore limited to supporting actions of national authorities, except (and only) to the extent that the Treaty confers express powers to act on such agencies” (see, PEERS, EU Justice and Home Affairs Law: EU Criminal Law, Policing, and Civil Law, Volume II, London 2016, 27). Relatedly, Article 4(2) TEU provides that “the Union (…) shall respect their essential State functions, including ensuring the territorial integrity of the State, maintaining law and order and safeguarding national security. In particular, national security remains the sole responsibility of each Member State”.

Furthermore, Article 73 TFEU indicates that “it shall be open to Member States to organize between themselves and under their responsibility such forms of cooperation and coordination as they deem appropriate between the competent departments of their administrations responsible for safeguarding national security”. Hence, while competences are shared between the EU and the Member States in the AFSJ (Article 4(2)(j) TFEU), Articles 72 and 73 TFEU limit the powers conferred to the Union in matters directly linked to Member States’ national sovereignty (Article 2(6) TFEU).

Taking Stock of the Novel Operational Powers

Currently, Article 8(2) Regulation 2019/XXX specifies that “the multiannual strategic policy for the European Integrated Border Management shall define how the challenges in the area of border management and return are to be addressed in a coherent, integrated and systematic manner (…)”. That is, the national authorities in charge of border management shall conform to the strategy adopted by the EBCG (Article 3(3) Regulation 2016/1624 and 8(6) Regulation 2019/XXX). Member States shall abstain from conducting “any activity which could jeopardise the functioning of the Agency or the attainment of its objectives” (Articles 8(2) Regulation 2016/1624 and 7(5) Regulation 2019/XXX). To this end, the EBCG is authorised to supervise the effective functioning of the national external borders, undertake vulnerability assessments, monitor whether a Member State is qualified to effectively implement the applicable EU legislation, and detect deficiencies in the management of the national borders.

The EBCG is thus conferred a supervisory and intervention role, which allows the agency to adopt quasi-binding measures for the Member States and to directly intervene in the territory of the Member State if such measures are not effectively implemented (Article 18 Regulation 2016/1624 and 43 Regulation 2019/XXX). In the event that a Member State neither adopts the measures recommended in its vulnerability assessment, nor requests/takes necessary actions in the face of disproportionate and sudden migratory pressure, the EBCG shall ensure a unified, rapid, and effective EU response so as not to jeopardise the functioning of the Schengen area. In this situation and according to Article 43(1) Regulation 2019/XXX, “the Council, on the basis of a proposal from the Commission may adopt without delay a decision by means of an implementing act, identifying measures to mitigate those risks to be implemented by the Agency and requiring the Member State concerned to cooperate with the Agency in the implementation of those measures”.

Since the Council decision is adopted, the EBCG’s Executive Director shall, within two working days, draft an operational plan and submit it to the Member State concerned (Article 43(4) Regulation 2019/XXX). Once the operational plan is submitted, the agency’s Director and the Member State concerned shall agree on concrete actions to be adopted, including the deployment the necessary operational staff from the European Border and Coast Guard standing corps, for the practical execution of the measures identified in the Council’s decision.

Article 43(8) Regulation 2019/XXX requires the Member State concerned to comply with the Council decision by cooperating with the EBCG and taking the necessary actions to facilitate the implementation of the Council’s decision and the agency’s operational plan. However, these obligations are tempered when Article 43(9) Regulation 2019/XXX indicates that the European Commission may authorise the reestablishment of border controls in the Schengen area, provided that the concerned Member State neither executes the decision adopted by the Council, nor agrees with the EBCG’s Operational Plan within 30 days. Ultimately, the Member State concerned subject to the EBCG’s “intervention” shall expressly consent and agree with the agency in regards to the operational support that will be provided in its external borders as to ensure the functioning the Schengen area (Article 43(5) Regulation 2019/XXX).

Towards a European Corps of Border Guards?

Regulations 2016/1624 and 2019/XXX introduce the new EBCG as a guarantor of an integrated management of the European borders. In the European Commission’s own words, “by setting new standards and imbuing a European culture within border guards, the European Border and Coast Guard will also become a blueprint on how EU border management should be implemented”. Both Regulations 2016/1624 and 2019/XXX clearly strengthen the EBCG’s autonomy since the agency will depend to a much lesser extent on the specific operational secondments and support of the Member States. The EBCG should finally have its own equipment and operational personnel for its immediate deployment in joint and rapid operations. However, the most controversial, significant and novel operational powers included in Regulations 2016/1624 and 2019/XXX consist in introducing the agency’s capacity to “intervene” and granting executive powers to the agency’s staff members respectively.

On the one hand, Regulation 2016/1624, in order to avoid endangering the functioning of the Schengen area, entitled the EBCG to intervene if a Member State decides not to implement the measures recommended by the Executive Director to tackle the weaknesses detected at its external borders, or if the Member State does not request operational assistance in the face of disproportionate and sudden migratory pressure at its borders. However, it is debatable to what extent the agency is able to impose the application of certain measures to a Member State that is opposed to them. Regulation 2016/1624, and now Regulation 2019/XXX, do not provide much clarity in this respect, which is a common feature of those European Union legislative instruments in charge of regulating highly sensitive competences that require the support of national authorities.

On the other hand, Regulation 2019/XXX confers executive powers to the EBCG’s standing corps deployed as team members. While these executive powers may ensure a more effective, integrated and supranational administration of the European external borders, these activities also entail a significant, and difficult to control, degree of discretion that excessively stretch the Treaty provisions establishing the Member States as ultimately responsible for their own internal security and external border management.

Although it is true that the EBCG will assist more independently the Member States in matters closely linked to their national sovereignty prerogatives, the competent national authorities that vote at the Management Board will continue to tightly control the agency’s recently reinforced operational and supervisory functions. Only two representatives of the European Commission have voting rights in the EBCG’s Management Board and, the presence of the European Parliament is non-existent. The Member States have thus ensured control of the strategic operational powers and the daily management of the agency.

Consequently, despite the fact that the name of the EBCG may lead to misunderstanding and even the European Commission constantly refers to the agency as a true European system of guarding borders and coasts, Regulations 2016/1624 and 2019/XXX do not create a European Corps of Border Guards with full and exclusive competences in border management. Nevertheless, Regulations 2016/1624 and 2019/XXX do reveal how difficult still is to strike a balance between designing an effective integrated strategy for the management of the European external borders and the Member States’ resistance to confer operational powers directly linked to their core national sovereignty. It is still early to conclude if we are only facing another revision of FRONTEX’ initial mandate as a reaction to an unprecedented migratory pressure or, on the contrary, Regulations 2016/1624 and 2019/XXX constitute the definitive step that will facilitate in the future the establishment of a European Corps of Border Guards with full executive, implementation and decision-making powers in the management of the European external borders.

Barnard & Peers: chapter 26
JHA4: chapter I:3
Photo credit:

Tuesday, 28 May 2019

‘Can a man serve two masters’? The Court of Justice decides whether monks can be banned from being lawyers

Rebecca Zahn, Senior Lecturer in Law, University of Strathclyde

Lawyers occupy a unique position in the European Union. Within their Member States, they play a vital role in providing access to and administering justice, and upholding the rule of law. As with other professionals such as doctors or architects, access to the profession is tightly regulated by national bodies. Yet unlike other professionals, lawyers are inherently immobile. The knowledge required to be a lawyer is closely linked to the jurisdiction within which an individual trains and qualifies. An understanding of the national language as well as of a particular legal system’s customs and practices is vital for the exercise of the profession. This makes the facilitation of free movement of lawyers difficult. Lawyers can make use of the general system of Directive 2005/36/EC, which leads to full integration in the profession of the receiving Member State following the successful completion of an aptitude test. The European Commission’s Regulated Professions Database suggests that 7,506 lawyers have availed themselves of this route to gain admission to the profession in a host State.

Yet in recognition of their special status, lawyers are the only professionals who benefit from an additional regime designed to facilitate temporary and permanent free movement.  Directive 77/249/EEC permits lawyers registered in one Member State to provide temporary cross-border services in another Member State without any prior notification. There are no statistics available on the use of this right but a 2012 study for the European Commission evaluating the Legal Framework for the Free Movement of Lawyers suggested that there was a large market for the temporary cross-border provision of services albeit with limited physical movement; often such services are provided at a distance, for example by e-mail or telephone.

Finally, Directive 98/5/EC allows lawyers to register to practice law on a permanent basis in a host Member State. Article 3 of that Directive mandates that lawyers wishing to practice in a host Member State register with the competent authority by presenting their registration certificate. The competent authority shall register the lawyer initially under their home-country professional title which allows the lawyer to give advice on his home law, EU law, international law or the law of the host Member State (Article 5(1)). Under Article 6, the host Member State’s professional rules of conduct will apply to the lawyer’s exercise of activity in that State. Following three years of practice in the law of the host Member State, the lawyer can apply to be admitted to the profession of lawyer in the host Member State (Article 10).

The Directive thus harmonises access to the profession under Article 3 while granting Member States discretion when it comes to integrating individuals through its own rules of professional conduct. However, this hybrid nature of the Directive can lead to difficulties as was made clear in a judgment handed down by the Grand Chamber of the Court of Justice of the European Union on 7 May 2019 in Case C-431/17 Monachos Eirinaios v Dikigorikos Syllogos Athinon.

The case concerned a Greek monk, Monachos Eirinaios, who lives in a monastery in Greece. He is also a qualified lawyer and a member of the Cyprus Bar Association. In June 2015, he relied on Article 3 of Directive 98/5 to register with the Athens Bar Association as a lawyer who has acquired his professional title in another Member State. The application was refused on the basis of the national rules on incompatibilities contained in Article 8(1) of the Presidential Decree 152/2000 and Article 6 of the Lawyers’ Code which prohibit a clergyman or monk from being a lawyer in Greece. The Athens Bar Association argued that monks were barred from becoming lawyers due to the absence of guarantees regarding their independence, doubts as to their ability to occupy themselves fully with their functions and whether they can handle contentious cases, the requirement for actual establishment in the geographical area of practice and the obligation not to provide services without remuneration. Monachos Eirinaios appealed the decision and the Council of State referred a question to the Court of Justice asking whether Article 3 of Directive 98/5 required the Athens Bar Association to register Monachos Eirinaios even though he would not be allowed to practice once registered.

In a short judgment, the Court reiterated that Article 3 of Directive 98/5 harmonises the rules under which a lawyer can establish himself in a host Member State. Provided that the lawyer is fully qualified and has the requisite certificate from the home Member State, the host Member State authorities must register him regardless of whether he is subsequently able to practice. National authorities are not permitted to impose additional conditions for registration other than those contained in article 3. This follows from the decision in Case C-58/13 Torresi (discussed here) where the Court established the mutual recognition of the professional titles of lawyers. The Court recognised the absurdity of the situation in Monachos Eirinaios where it was requiring the competent authorities to issue a registration certificate with the knowledge that the individual would not be able to practice.

However, the Court drew a clear distinction between access to the profession on the one hand and its practice on the other hand. The Court accepted that in relation to the latter national authorities may wish to impose certain requirements in order to maintain professional standards. The Court did not comment on the nature of the complete ban on monks becoming lawyers (saying only that it could not be a prerequisite for registration) but instead required the national court to determine whether the ban complied with the principle of proportionality (without giving specific guidance on the criteria to be applied).

The decision in Monachos Eirinaios follows on from the Court’s previous jurisprudence on Directive 98/5 which has focussed on facilitating the free movement of lawyers. In doing so, it is to be welcomed. Given the sensitive nature of the topic both in terms of access to a highly regulated profession and, in the specific Greek context, of the evolving relationship between church and state, the decision also strikes a subtle balance between facilitating access while maintaining Member State discretion. It is therefore perhaps not surprising that the case was heard by the Grand Chamber. However, by circumventing any discussion of the complete ban on monks and clergymen becoming lawyers, the Court has indeed created an absurd situation; namely, that the Athens Bar Association is required to register Monachos Eirinaios and can then immediately strike him off. More detailed guidance on the proportionality test to be applied in these circumstances could have been beneficial especially as the Advocate General engaged in a more nuanced discussion of the topic.

The Advocate General suggested that the rule bans all individuals with particular characteristics from practicing law and thus should not fall under professional conduct. This is a well-spotted flaw in the rules. The Advocate General suggests instead that the Bar Association should be required to see how a lawyer conducts himself in practice before removing registration (following the reasoning in Case C-225/09 Jakubowska where it was recognised that failure to comply with host State rules may lead to a foreign lawyer being removed from the register).

In this, she is correct. In effect, the Bar Association is making an assumption that monks are incapable of fulfilling the rules of professional conduct required of lawyers because they are monks. There is no need for any assessment as to whether the monk (or clergyman) is practicing his religion. Indeed, there is also no clear definition of the scope of the definition of monk or clergyman for the purposes of the Directive (what if, for example, someone is a lay preacher in another Member State – does this classify as a clergyman in this instance?). If Directive 98/5 is to facilitate free movement of lawyers then there must be a minimum harmonisation of what we understand ‘rules of professional conduct’ to be under Article 6. Blanket bans which relate to characteristics (and do not allow conduct to occur) do not facilitate free movement and render the right to registration in effect nugatory.

Moreover, the procedural guarantees in the case of disciplinary procedures in Article 7 or the right of recourse to a court in Article 9 of the Directive only apply once an individual has practiced as a lawyer which is rendered impossible in this case. If we abstract this case from its specific facts then accepting such a blanket ban in relation to a characteristic is a potentially problematic assumption which could undermine the rule of law. What if a Member State introduces rules which require political party affiliation in order to practice as a lawyer under the guise of professional rules of conduct? In a different factual context, the lack of minimum harmonisation of what we understand rules of conduct to encompass could undermine lawyers’ ability to provide access to and administer justice. In skirting around this topic, the Court of Justice has missed an opportunity to further clarify the scope of Directive 98/5/EC.

Barnard & Peers: chapter 14
Photo credit: InHouse Legal

Judicial Independence and Maltese courts: Is a microstate about to provide EU rule of law with its Van Gend moment?

Justin Borg-Barthet, Senior Lecturer in EU Law at the University of Aberdeen*

In fifteen years of EU membership, Maltese courts have been remarkably reluctant to refer questions of interpretation to the CJEU.  This could be about to change in litigation which could have far-reaching consequences for the direct effect of member states’ rule of law and human rights obligations.  The dispute raises important, novel questions concerning the extent to which EU law of a classical constitutional nature could be democratised in much the same manner as the law of the internal market was democratised through Van Gend.

In the case of Pace Axiaq et al vs Prim Ministru, an NGO has asked the Civil Court to seek a preliminary ruling concerning the compatibility with EU law of Malta’s system of judicial appointments.  The NGO contends that a system which grants the executive absolute power over appointment and promotion breaches the right to a fair trial and the right to an effective remedy (Art 19 TEU and Art 47 Charter of Fundamental Rights).  The applicants also seek to enjoin the government to refrain from making further appointments to the bench until constitutional reforms have been implemented.

In a decree issued on 22 May 2019, the Civil Court rejected the Maltese government’s request to summarily dismiss the case.  The Court found that, while the applicants could not rely on the Maltese Constitution or the ECHR, they did have a juridical interest insofar as they rely on EU law. 

The case, should it be referred to the CJEU, would enable the further development of jurisprudence through which the Luxembourg court has operationalised the rule of law in the EU.  In particular, it could render individuals enforcers of the principles in the Juizes Portugueses judgment (discussed here) in which it was held that “every Member State must ensure that the bodies which, as ‘courts or tribunals’ within the meaning of EU law, come within its judicial system in the fields covered by that law, meet the requirements of effective judicial protection” (para 37).

Systematic backsliding in the absence of systemic change

The applicants in Pace Axiaq rely in great measure on the ongoing proceedings in Commission v Poland (discussed further here).  Their submissions refer also to the damning indictment of Malta’s rule of law failings in a report by the Council of Europe’s Venice Commission.  The report, which was prompted by the assassination of journalist Daphne Caruana Galizia, noted that the independence of the judiciary is severely compromised by the present system of appointments.

The Maltese government has, in fact, committed to introducing legislation which will make the judiciary self-perpetuating, thereby severing the executive’s control over the judicial branch.  The catch, however, is that appointments to the bench have continued; indeed, six appointments were made quite hurriedly following the filing of Pace Axiaq.  The net effect is that partisan capture could be perpetuated if a secure partisan majority of judges is installed by the executive prior to any legislative innovation.  As former ECHR judge Giovanni Bonello observes, permanent capture is quite likely given that the vast majority of judicial appointees since the 2013 change of government have either occupied a prominent role in the governing party or have close family or business relations with persons who do. 

Equally importantly, the threat to the independence of the judiciary is to be considered in a broader context of institutional capture.  The Maltese constitution relies on trust insofar as the separation of powers is concerned.  The executive has extensive powers of appointment and removal of officials responsible for the enforcement of criminal law, including financial regulation required by EU law. This has always been problematic in conceptual terms, and internal criticism is not a new phenomenon.  Recent events, however, demonstrate that there has been significant movement towards a deliberate culture of impunity in the highest political offices.  Erosion of the independence of the judiciary therefore takes on an altogether more worrisome flavour given many considered the judiciary to be a significant bar to the further (or complete, by some accounts) erosion of the rule of law, and the principle of sincere cooperation.

Malta is not Poland, but…

The Maltese rule of law crisis is distinguishable from its better-known Polish counterpart, however.  Poland has adopted regressive laws following EU membership, and thereby compromised the standard of judicial independence which had been scrutinised prior to accession.  The European Commission has been clear that this type of formal backsliding engages EU law, specifically Article 7 TEU, and requires redress as a matter of Union law.

In Malta, in contrast, the laws which the applicants in Pace Axiaq contend are contrary to EU law have been in place for as long as Malta has been an independent state.  Of course, nowhere in the treaties is the enforcement of fundamental rights and rule of law obligations contingent on regression, but the absence of formal regression means that a clear demarcation between compliance and its absence is lacking.  Indeed, the Maltese government, cognisant of the Commission’s formulaic systemic backsliding criteria, has been eager to emphasise the Commission’s role in the enforcement of rule of law obligations, arguing that there is no private route to enforcement. 

The potential innovation in Pace Axiaq, and the reason why a preliminary ruling is in fact necessary, is that the petitioners rely instead on the direct effect of certain human rights obligations: Article 19(1) TEU, which requires national courts to “provide remedies sufficient to ensure effective legal protection in the fields covered by Union law”, and Article 47 of the Charter of Fundamental Rights, which guarantees the right to an effective remedy and the right to a fair trial.  The matter is then brought within the scope of the Wachauf formula by way of the duty of sincere cooperation in Article 4(3) TEU; it is argued that the entire substance of the effectiveness of EU law may be at stake, and that all future judgments could be called into question should judicial independence be further compromised.

Paradoxically, Pace Axiaq could provide the Maltese courts with an opportunity to make their greatest contribution to the rule of law at a time when their own independence is most under threat.  Much like the establishment of the internal market required the development of direct effect and citizen-led enforcement of the law, supranational judicial oversight would go a long way towards fulfilling EU law’s promise of a system founded on the rule of law and fundamental rights.

*Reblogged from Verfassungsblog

Barnard & Peers: chapter 9
Photo credit: The Judiciary of Malta

Saturday, 25 May 2019

What might have happened in an alternate universe: the EU (Withdrawal Agreement) Implementation Bill (‘WAB’)

Professor Tamara Hervey, University of Sheffield, and Professor Steve Peers, University of Essex

People who voted for a ‘coalition of chaos’ with Ed Miliband in 2015 sometimes imagine the goings-on in the ‘Miliverse’ – a parallel universe where Ed Miliband won the general election that year, and where the main debates in British politics are about bin collections and bus routes, rather than Brexit. With yesterday’s resignation of the Prime Minister, we can imagine the ‘Mayverse’ – a universe where Mrs May either held off calling an election, or held it and won the large majority she was hoping for, or had successfully pursued the art of compromise that she referred to in her resignation speech.

The latest big development in the ‘Mayverse’ would have been the Bill implementing the EU/UK Withdrawal Agreement. In our universe, on 15 May 2019, the UK government had announced that it would publish this Bill in ‘early June’.  This week the Prime Minister, before resigning, set out the main points of the Bill. Of course, her resignation, and the earlier news that the Conservative/Labour talks have failed, makes this much less likely.  However, in post-EU referendum politics, many futures are possible, including ones we might not foresee.  A lawyers’ job is to make sense of the legal texts that seek to express political agreements.
So this blog post considers some of the possibilities for one of the key elements of the EU (Withdrawal Agreement) Implementation Bill (or ‘WAB’ as it has come to be known) that would have been tabled in the Mayverse, and might yet be tabled in our universe: how is the UK going to render its obligations under the EU/UK Withdrawal Agreement into domestic law? (Other key elements are considered here.)

Available information at present

At this time, there is no text of the EU (Withdrawal Agreement) Implementation Bill in the public domain. What is available is the White Paper on Legislating for the Withdrawal Agreement, from July 2018, and the EU/UK Withdrawal Agreement itself, as well as the documents that surround it, such as the Preliminary Joint Report from the negotiating teams, from December 2017.
Only two paragraphs of the White Paper explicitly address the WAB.  One (para 148) simply says that if Parliament approves the Withdrawal Agreement, government will bring forward the WAB (see also para 4 which says government will only do this once the Withdrawal Agreement is approved by Parliament).  The other (para 149) states:

‘As set out in the preceding chapters of this paper, the Bill will be the primary means of implementing the Withdrawal Agreement in UK law, to ensure the Government meets its international obligations as set out in the treaty, …’

This makes it sound like the WAB would have treated the Withdrawal Agreement as ordinary international law.  This is not what the text of the Withdrawal Agreement suggests.  Its Article 4 provides:

‘(1) The provisions of this Agreement and the provisions of Union law made applicable by this Agreement shall produce in respect of and in the United Kingdom the same legal effects as they produce within the Union and its Member States. Accordingly, legal or natural persons shall in particular be able to rely directly on the provisions contained or referred to in this Agreement which meet the conditions for direct effect under Union law.
(2) The United Kingdom shall ensure compliance with paragraph 1, including as regards the required powers of its judicial and administrative authorities to disapply inconsistent or incompatible domestic provisions, through domestic primary legislation.
(3) The provisions of this Agreement referring to Union law, or to concepts or provisions thereof, shall be interpreted and applied in accordance with the methods and general principles of Union law.
(4) The provisions of this Agreement referring to Union law, or to concepts or provisions thereof shall in their interpretation and application be interpreted in accordance with the relevant case law of the Court of Justice of the European Union handed down before the end of the transition period.
(5) In the interpretation and application of this Agreement, the United Kingdom’s judicial and administrative authorities shall have due regard to relevant case law of the Court of Justice of the European Union handed down after the end of the transition period.

Article 4 WA thus embodies key principles of EU law: direct effect (enforceability of rights by individuals before domestic courts); primacy/supremacy (‘disapplication’ of inconsistent domestic law); and consistent interpretation with both the methods of EU law, and its ‘general principles’ (which of course include fundamental human rights, as (now) set out in the EU Charter and interpreted by the CJEU).  The WA sees itself as almost a species of EU law, and not as an ordinary EU international agreement.  At least the direct effect and supremacy aspects of that interpretation are reflected in the December 2017 Preliminary Joint Report (para 36), which states:

“Once this Bill has been adopted, the provisions of the citizens' rights Part will have effect in primary legislation and will prevail over inconsistent or incompatible legislation, unless Parliament expressly repeals this Act in future.”

It almost goes without saying that all of these obligations would have been political dynamite in the contemporary UK context.

How would the WAB have gone about the tricky task of implementing the UK’s obligations under the Withdrawal Agreement ‘in primary legislation’ (as required in Article 4 (2) of the Withdrawal Agreement)? The following is a summary of possible approaches and some of their implications.

Repeat the wording of the European Communities Act 1972

One possible approach would have been to use the wording of the European Communities Act (ECA) 1972.  To do so would have meant the continued supremacy and direct effect of law agreed between the UK and the EU (that is, the Withdrawal Agreement).  It would use a ‘tried and tested’ legal method, given that the ECA has in effect accommodated those concepts in the UK’s domestic constitutional system for over forty years, even if constitutional lawyers disagree on exactly how it does so.  In effect, this approach would create a new source of law in the UK’s constitution: that of ‘Withdrawal Agreement law’, in the same way that the European Communities Act 1972 is, in the words of the UK Supreme Court in Miller, para 65, the ‘conduit pipe’ by which EU law becomes ‘an independent and overriding source’ of UK law.  This new source of law would be in addition to the new source(s) of law (‘retained EU law’ of various types) which will be created by the EU (Withdrawal) Act 2018, when it comes fully into force.

The benefits of this approach are that it secures compliance with the provisions of Article 4 of the Withdrawal Agreement.  Further, there is significant jurisprudence, including from the House of Lords and Supreme Court, on the meaning and effect of the relevant parts of the European Communities Act 1972. In particular, the Factortame ruling confirms that domestic legislation, irrespective of its date, that cannot be consistently interpreted with directly effective, validly adopted EU law, must be ‘disapplied’. This approach thus entails significant legal certainty and clarity.

The detriments, however, include the complexities associated with yet another new source of law, a point made by Mark Elliott in 2017.  Further, as Elliott notes, this approach would appear inconsistent with the intention of the EU (Withdrawal) Act to expunge directly effective EU law per se from the UK’s legal systems.  Moreover, while the ECA might be able to work ‘constitutional magic’ with EU law, whether it can do so with an ‘ordinary treaty’ (if we think of the EU/UK Withdrawal Agreement as such) is far from certain.

EU/UK Withdrawal Agreement as ‘ordinary’ international law that gives human beings rights

An alternative model is to consider the EU/UK Withdrawal Agreement as ‘ordinary’ international law, or, perhaps better, as international law that gives human beings rights.  The key analogy here is with the European Convention on Human Rights and the Human Rights Act 1998.  Although in principle in the UK’s legal systems, domestic legislation takes precedence over conflicting international treaties, courts understand themselves to be under an obligation to interpret domestic legislation consistently with international treaties if possible, on the basis of a presumption that Parliament intends to comply with the UK’s obligations in international law.  

The obligation permits the UK’s courts – particularly its Supreme Court – to stray from the explicit language of a statute, and even from Parliament’s apparent intention when adopting that statute, as seen for instance in Ghaiden v Goden-Mendoza.  Of course, it is going to be far from easy for domestic courts to discern the intentions of Parliament when adopting the WAB, and so textual interpretation may well be more important in practice here.  The Human Rights Act 1998, sections 2 and 3, require that domestic courts must interpret domestic law ‘in a way which is compatible with’ ECHR rights and must ‘take into account’ decisions of the ECHR’s institutions whenever the domestic court considers it to be relevant to the instant proceedings.  Similar wording in the WAB could include decisions about the effects of the Withdrawal Agreement (for instance its direct effect or primacy) made by EU institutions.  But, unlike the ECA approach, such wording does not require ‘disapplication’ of domestic law if consistent interpretation turns out to be impossible.
This approach would also involve certainty and clarity.  However, it would potentially fail to fulfil the UK’s obligations under the Withdrawal Agreement in full.

Use the wording of the Withdrawal Agreement

A third approach would be to adopt a form of words that explicitly indicates intention to comply with both the letter and spirit of the Withdrawal Agreement, by using the words of its Article 4 (1):

‘shall produce in respect of and in the United Kingdom the same legal effects which they produce in the Union and its Member States. Accordingly, legal or natural persons shall in particular be able to rely directly on the provisions contained or referred to in this Agreement which meet the conditions for direct effect under Union law’.

This approach creates less certainty as there is, obviously, no jurisprudence on which provisions of the Withdrawal Agreement meet the conditions for direct effect.  There is no universal rule in EU law as to direct effect of provisions of treaties to which the EU is a party: it is dependent on the context, aims and objectives of the treaty concerned.  In the EU’s legal order, the threshold test for direct effect is higher for international agreements to which the EU is a party than it is for other sources of EU law: the nature of international law differs from other EU law in this respect.  However, in this instance, there is a strong argument to the effect that at least the part of the Withdrawal Agreement on citizens’ rights, which mirrors directly effective provisions of EU law, meets the conditions for direct effect.  Whether this is the case for other provisions, such as, for instance, those on data protection, is a different matter.

Alternatively, or in addition, the EU (Withdrawal Act) Implementation Bill could adopt the wording of WA Article 4 (2), by requiring ‘judicial and administrative authorities to disapply inconsistent or incompatible domestic provisions’.  This would have the benefit of compliance with the Withdrawal Agreement obligations.  Whether the UK courts would interpret the obligation as identical to that under the European Communities Act 1972, given that the UK would no longer be a Member State of the EU, would potentially be a moot point, and some have argued that it might be ‘constitutionally impossible’.  Thus this position offers less legal certainty than the wording of the European Communities Act would bring.

Problems with any approach

Mike Gordon is right to point out that any of these approaches is of course vulnerable to the WAB itself being repealed.  But equally, as he says, any of them, and especially the ECA or WA wording approaches would constitute a significant example of Parliament seeking to constrain its powers and in effect to bind its successors.

The Withdrawal Agreement seeks to secure the position of EU-27 citizens in the UK (and vice versa).  Its effects, particularly as regards those citizens, will last long beyond the transition period.  The WAB would somehow need to secure these rights from interference not only from future UK governments, but also from future legislation.  While the UK is a Member State of the EU, the ECA effectively does so.  The WAB would need to do so without the underpinnings of EU membership: whatever approach it takes will be unlikely to satisfy those who are sceptical about securing citizens’ rights in the post-Brexit future.  As Paul Daly has pointed out, it is not difficult to imagine UK legislation discriminating against EU citizens.  Outside of EU law, the UK’s constitution does not have a tried and tested formulation for withstanding the normal lex posteriori rule of statutory interpretation.

These concerns would equally be relevant if the Bill contained provisions on the future UK/EU relationship, or as regards any parallel legislation dealing with that relationship. The Prime Minister had planned to table both: rules on a parliamentary mandate for the negotiations, and a Workers’ Rights Bill. Either way, it’s not true to say, as is sometimes claimed, that Boris Johnson (or whoever is the next Prime Minister) could just “rip up” such guarantees: it would require a parliamentary majority to do so. A watered-down version of the employment and environmental law guarantees that the opposition was seeking would nevertheless be ensured by the withdrawal agreement backstop.  However, the uncertainty attached to the prospect nevertheless was surely a factor in dissuading the opposition parties from agreeing to Mrs May’s proposals.

Final thoughts: WAB applied in first instance courts and tribunals

Ultimately, it does not matter so much exactly what the WAB says, but more how it is interpreted.  Here, of course, the decisions of the UK’s appellate courts will be crucial, as has been the case with the ECA and Human Rights Act.
However, we should not lose sight of the first-instance decision-making that will precede any such rulings.  It is this first instance decision-making – in immigration contexts, primarily, but also in employment contexts and perhaps many others – which will determine the real-life position of the human beings affected by Brexit, whose position the EU/UK Withdrawal Agreement seeks to protect as much as possible. 

One final sobering thought.  First instance judges in the UK respect the doctrine of Parliamentary sovereignty, and regard themselves at the service of the will of Parliament, as expressed in legislative text.  Judicial training includes – obviously – regular updates as legislation changes.  If the WAB were ever tabled, it might be enacted in record time.  But the WAB text has not even been released.  No one – including those who train the UK judiciary – has had any time to consider its meaning or effects.

Barnard & Peers: chapter 27
Photo credit: Medium