Monday, 4 January 2021

Analysis 3 of the Brexit deal: Human Rights and EU/UK Trade and Cooperation Agreement



Professor Steve Peers, University of Essex

Introduction

While the UK has left the European Union, its participation in the European Convention on Human Rights (ECHR) lives on. Yet although ECHR participation is separate from EU membership, there are links between human rights and EU law. Although those particular links have now ended for the UK, there is now a different set of links between human rights and the newly applicable Trade and Cooperation Agreement (TCA) between the EU and the UK.

This blog post examines those links, looking in turn at: (a) human rights conditionality in the TCA as a whole; (b) human rights conditionality in the criminal law part of the TCA; (c) the protection of social rights in the TCA; (d) data protection issues in the TCA; (e) the role of the courts on the EU side. There’s also a possibility for disapplying the services rules to a particular company covered by sanctions, including sanctions on human rights grounds (Article SERVIN.1.3), but I don’t look further at that in this blog post (although note that unlike some other issues discussed in this blog post, the normal TCA dispute settlement rules would apply to any disputes about such sanctions). (Update April 28, 2021: this blog post has been updated to refer to the final numbering of TCA Articles. It has retained the old numbering too, for the convenience of anyone used to using it).

This blog post is the third in the series of analyses of the TCA – following on from my overview of the TCA, and Professor Tamara Hervey’s analysis of the social security provisions. (Update: later blog posts cover dispute settlement and environment and climate change).

As a reminder, the TCA is a separate treaty from the withdrawal agreement, which continues to apply between the UK and the EU. The rules on termination or suspension of the TCA are quite different from those applicable to the withdrawal agreement (which I discussed here) – and not only as regards human rights issues.


Summary of this blog post

The general rules on human rights conditionality of the whole TCA allow it to be terminated or suspended (perhaps in part) on human rights grounds, but this is not automatic and is subject to a fairly high threshold.  For criminal law, there is a special form of fast track termination (if the UK or a Member State denounces the ECHR or some of its Protocols, including on the death penalty) or suspension. Again, this is not automatic. For social/labour rights, there are general rules which may lead to a panel report, but not retaliation, as well as a non-regression obligation, which can result in retaliation, most likely in the area of trade. For data protection law, there’s a short transition period where in principle the UK is covered by data protection law, following which much will depend on whether it has obtained a valid adequacy decision from the EU. Finally, the role of the courts in human rights disputes may be important too – most obviously as regards data protection adequacy decisions, where prior case law sets out the possibility to argue that a non-EU country does not meet the standards which it needs to meet to get one, but potentially in some other EU/UK human rights disputes too.

 

Human rights conditionality in the TCA as a whole

The starting point for human rights conditionality of the TCA as a whole is the ‘common provisions’ of the TCA (in Title II of Part Six). This begins with a dedicated Article on human rights:

Article 763 (previously COMPROV.4): Democracy, rule of law and human rights

1. The Parties shall continue to uphold the shared values and principles of democracy, the rule of law, and respect for human rights, which underpin their domestic and international policies. In that regard, the Parties reaffirm their respect for the Universal Declaration of Human Rights and the international human rights treaties to which they are parties.

The ECHR is not mentioned specifically, although it is, of course, one of the international human rights treaties which the UK is party to. There are subsequent Articles on climate change, weapons of mass destruction (WMDs), serious crime, counter-terrorism, data protection, and global cooperation. However, only the provisions on human rights, climate change and WMDs are then described by Article 771 (previously COMPROV.12) as constituting ‘essential elements of the partnership established by this Agreement and any supplementing agreement’.

The consequence of defining an issue as an ‘essential element’ of the TCA is that it is then subject to a special procedure in Title III of Part Six, potentially leading to fast-track termination or suspension of the entire agreement, partly or wholly:

Article 772 (previously INST.35): Fulfilment of obligations described as essential elements

1. If either Party considers that there has been a serious and substantial failure by the other Party to fulfil any of the obligations that are described as essential elements in Article 771 (previously COMPROV.12 [Essential elements]), it may decide to terminate or suspend the operation of this Agreement or any supplementing agreement in whole or in part.

2. Before doing so, the Party invoking the application of this Article shall request that the Partnership Council meet immediately with a view to seeking a timely and mutually agreeable solution. If no mutually agreeable solution is found within 30 days from the date of the request to the Partnership Council, the Party may take the measures referred to in paragraph 1.

3. The measures referred to in paragraph 1 shall be in full respect of international law and shall be proportionate. Priority shall be given to the measures which least disturb the functioning of this Agreement and of any supplementing agreements.

4. The Parties consider that, for a situation to constitute a serious and substantial failure to fulfil any of the obligations described as essential elements in Article 771 (previously COMPROV.12 [Essential Elements]), its gravity and nature would have to be of an exceptional sort that threatens peace and security or that has international repercussions. For greater certainty, an act or omission which materially defeats the object and purpose of the Paris Agreement shall always be considered as a serious and substantial failure for the purposes of this Article.

Note, however, that: a) it must be a ‘serious and substantial failure’ to fulfil obligations described as an ‘essential element’, further defined as a failure whose ‘gravity and nature would have to be of an exceptional sort that threatens peace and security or that has international repercussions’; b) denouncing the ECHR, or any other human rights treaty, is not explicitly mentioned in this context; c) suspension or termination is not automatic (a party ‘may decide’); d) there are procedural requirements, entailing at least a 30-day delay in any measures being taken while discussions are held; and e) there is an obligation of proportionality – which may mean that the complaining party stops short of terminating the entire agreement.

Moreover, either party may terminate the entire treaty anyway with twelve months’ notice, without having to give any grounds or go through any discussion process (Article 779, previously FINPROV.8).  So the ‘essential elements’ clause should be seen in that context – it’s a fast-track to termination (or suspension), but then termination would be possible anyway after a relatively short period if the threshold for fast track termination is not met. It should also be noted that similar clauses exist in other EU treaties with non-EU countries – and the EU is notably reluctant to trigger them. 

A final point: the provisions of Title II of Part Six are excluded from the dispute settlement process (see Article 735(2)(h), previously INST.10(2)(h)). This means that the substantive definitions of ‘essential elements’ of the TCA cannot be subject to dispute settlement. However, there is no exclusion from dispute settlement for Title III of Part Six – ie the provision on the process of deciding on suspension or termination of the treaty. 

 

Human rights conditionality in the criminal law part of the TCA

Part Three of the TCA, which comprises the rules on law enforcement cooperation, contains its own variation on an ‘essential elements’ clause (Article 524, previously LAW.GEN.3):

1. The cooperation provided for in this Part is based on the Parties’ and Member States’ longstanding respect for democracy, the rule of law and the protection of fundamental rights and freedoms of individuals, including as set out in the Universal Declaration of Human Rights and in the European Convention on Human Rights, and on the importance of giving effect to the rights and freedoms in that Convention domestically.

2. Nothing in this Part modifies the obligation to respect fundamental rights and legal principles as reflected, in particular, in the European Convention on Human Rights and, in the case of the Union and its Member States, in the Charter of Fundamental Rights of the European Union.

This Article tells us that Part Three of the TCA is ‘based on…respect for’ human rights, including the ECHR, as well as the ‘importance’ of giving effect to it domestically. Unlike the general provisions in the TCA, here we have an explicit reference to the ECHR.

However, these provisions, by themselves, do nothing. To assess the practical importance of human rights protection to the criminal law Part of the treaty we have to look at Part Three’s own termination clause (Article 692, previously LAW.OTHER.136):

1. Without prejudice to Article 779 (previously FINPROV.8 [Termination]), each Party may at any moment terminate this Part by written notification through diplomatic channels. In that event, this Part shall cease to be in force on the first day of the ninth month following the date of notification. 

2. However, if this Part is terminated on account of the United Kingdom or a Member State having denounced the European Convention on Human Rights or Protocols 1, 6 or 13 thereto, this Part shall cease to be in force as of the date that such denunciation becomes effective or, if the notification of its termination is made after that date, on the fifteenth day following such notification.

3. If either Party gives notice of termination under this Article, the Specialised Committee on Law Enforcement and Judicial Cooperation shall meet to decide what measures are needed to ensure that any cooperation initiated under this Part is concluded in an appropriate manner. In any event, with regard to all personal data obtained through cooperation under this Part before it ceases to be in force, the Parties shall ensure that the level of protection under which the personal data were transferred is maintained after the termination takes effect.

As we can see, either side has a general power to terminate Part Three specifically (leaving in place the rest of the treaty) with nine months’ notice. This differs from the twelve months’ notice as regards the general power to terminate the entire treaty. As with the termination clause relating to the entire TCA, the power to terminate Part Three is not limited to any specific grounds. However, unlike the general TCA termination clause, the Part Three termination clause includes a requirement (in para 3) to discuss the process of wrapping up proceedings which are underway, as well as a safeguard for the protection of personal data which was already transferred. (Update, 28 April 2021: the EU institutions will adopt a statement declaring their intention to use this clause).

Furthermore, Part Three has its own specialist version of the whole TCA’s ‘essential elements’ clause, which similarly provides for a form of fast-track termination (para 2).  Here, the termination of Part Three ends the moment that denunciation of the ECHR or one of the three protocols referred to by the UK or an EU Member State becomes effective – or, if denunciation has already happened, fifteen days after the notice to terminate Part Three. (Note that two of these three protocols concern abolition of the death penalty).

As compared to the whole TCA’s ‘essential elements’ clause, the Part Three fast-track termination clause: that: a) is not subject to the ‘serious and substantial failure’ threshold (or any other threshold above and beyond denunciation of the ECHR or its listed protocols); b) termination is not automatic (a party ‘may’: para 1); c) there are no procedural requirements to discuss the issue, just the requirement to discuss wrapping up proceedings already underway (which, in this context, would likely be affected significantly by the denunciation of the ECHR or its protocols); d) there is no obligation of proportionality; and e) there is no reference in this context to amending or scrapping domestic law giving effect to the ECHR – although of course the general Part Three termination clause could still be invoked in that event.

This is not the end of the matter, though, because the criminal law part also includes its own clause on suspension, as distinct from termination. (You will recall that the ‘essential elements’ clause applying to the entire TCA, discussed above, could be used for termination or suspension, in whole or in part). This is Article 693 (previously LAW.OTHER.137), which provides as follows:

1. In the event of serious and systemic deficiencies within one Party as regards the protection of fundamental rights or the principle of the rule of law, the other Party may suspend this Part or Titles thereof, by written notification through diplomatic channels. Such notification shall specify the serious and systemic deficiencies on which the suspension is based.

5. The Titles concerned by the suspension shall provisionally cease to apply on the first day of the third month following the date of the notification referred to in paragraph 1 or 2, unless, no later than two weeks before the expiry of that period, as extended, as the case may be, in accordance with point (d) of paragraph 7, the Party which notified the suspension gives written notification to the other Party, through diplomatic channels, of its withdrawal of the first notification or of a reduction in scope of the suspension. In the latter case, only the Titles referred to in the second notification shall provisionally cease to apply.

6. If one Party notifies the suspension of one or several Titles of this Part pursuant to paragraph 1 or 2, the other Party may suspend all of the remaining Titles, by written notification through diplomatic channels, with three months’ notice.

7. Upon the notification of a suspension pursuant to paragraph 1 or 2, the Partnership Council shall immediately be seized of the matter. The Partnership Council shall explore possible ways of allowing the Party that notified the suspension to postpone its entry into effect, to reduce its scope or to withdraw it. To that end, upon a recommendation of the Specialised Committee on Law Enforcement and Judicial Cooperation, the Partnership Council may: (a) agree on joint interpretations of provisions of this Part; (b) recommend any appropriate action to the Parties; (c) adopt appropriate adaptations to this Part which are necessary to address the reasons underlying the suspension, with a maximum validity of 12 months; and (d) extend the period referred to in paragraph 5 by up to three months.

8. If either Party gives notification of suspension under this Article, the Specialised Committee on Law Enforcement and Judicial Cooperation shall meet to decide what measures are needed to ensure that any cooperation initiated under this Part and affected by the notification is concluded in an appropriate manner. In any event, with regard to all personal data obtained through cooperation under this Part before the Titles concerned by the suspension provisionally cease to apply, the Parties shall ensure that the level of protection under which the personal data were transferred is maintained after the suspension takes effect.

9. The suspended Titles shall be reinstated on the first day of the month following the day on which the Party having notified the suspension pursuant to paragraph 1 or 2 has given written notification to the other Party, through diplomatic channels, of its intention to reinstate the suspended Titles. The Party having notified the suspension pursuant to paragraph 1 or 2 shall do so immediately after the serious and systemic deficiencies on the part of the other Party on which the suspension was based have ceased to exist.

10. Upon the notification of the intention to reinstate the suspended Titles in accordance with paragraph 9, the remaining Titles suspended pursuant to paragraph 6 shall be reinstated at the same time as the Titles suspended pursuant to paragraph 1 or 2.

Paragraphs 2 to 4 concern data protection, and so are considered separately in a later part of this blog post. Note that: a) there is a threshold of ‘serious and systemic deficiencies’ – which is similar, but not identical, to the general TCA ‘essential elements’ clause; b) suspension is not automatic (a party ‘may’: para 1); c) there are procedural requirements to discuss the issue, which include a power to amend Part Three temporarily or delay the suspension process; d) there is again a requirement to discuss wrapping up proceedings already underway (which, in this context, would again likely be affected significantly by the concerns about human rights); e) there is no obligation of proportionality; f) there is again no explicit reference to amending or scrapping domestic law giving effect to the ECHR – although it is obviously possible that such a development could in practice trigger concerns about ‘serious and systemic deficiencies’; g) suspension takes about three months to take effect, so is slower than the general TCA ‘essential elements’ clause; h) if one party suspends some of Part Three, the other party can suspend the rest of it in return; and i) there is provision to end the suspension if the ‘serious and systemic deficiencies’ have ‘ceased to exist’.

As with the general ‘essential elements’ clause, Part Three has somewhat contradictory rules on dispute settlement, which apply in place of the main dispute settlement rules (or any other dispute settlement process: Article 697, previously LAW.DS.3). However, these special dispute settlement rules don’t apply to the suspension or termination clauses (Article 696, previously LAW.DS.2). On the other hand, the substantive human rights grounds in Part Three (Article 524, previously LAW.GEN.3) can be subject to dispute settlement. So while dispute settlement for the general ‘essential elements’ clause is confusing because the process can be subject to dispute settlement while the substantive clause cannot, the Part Three dispute settlement process is confusing for precisely the opposite reason: the substantive clause can be subject to dispute settlement, while the procedural clause cannot.

In any event, the application of the Part Three dispute settlement rules to the substantive human rights clauses gets us to essentially the same place in the end: in the event that the purely political Part Three dispute settlement process does not lead to a conclusion, one party can suspend some of Part Three in more or less the same way as it can under Article 693 (previously LAW.OTHER.137), discussed above (see Article 700, previously LAW.DS.6).

Finally, it should be noted that Part Three contains a number of specific provisions on human rights relating to specific forms of law enforcement cooperation. For fast-track extradition, Article  604(c) (previously LAW.SURR.84(c)) provides that ‘if there are substantial grounds for believing that there is a real risk to the protection of the fundamental rights of the requested person, the executing judicial authority may require, as appropriate, additional guarantees as to the treatment of the requested person after the person’s surrender before it decides whether to execute the arrest warrant’. Note that this is not explicitly a ground to refuse extradition as such, but rather a possibility to request additional guarantees.

For freezing and confiscation of assets, Article 671 (previously LAW.CONFISC.16) provides that ‘[w]here there are substantial grounds for believing that the execution of a freezing or confiscation order would entail a real risk for the protection of fundamental rights, the requested State shall, before it decides on the execution of the freezing or confiscation order, consult the requesting State and may require any necessary information to be provided.’ This is a similar approach to the extradition clause.

Finally, as regards Europol, Article 570 (previously LAW.EUROPOL.52(3)), concerning ‘restrictions on access to and further use of transferred personal data’, provides (among other things) that ‘Each Party shall ensure, as far as possible, that’ information transferred under the Title of the treaty relating to Europol ‘has not been obtained in violation of human rights. Nor shall such information be transferred if, to the extent reasonably foreseeable, it could be used to request, hand down or execute a death penalty or any form of cruel or inhuman treatment.’

None of these special human rights exceptions are excluded from the rules on dispute settlement regarding Part Three of the TCA.

 

Protection of social rights in the TCA

The protection of social rights has two facets. First of all, the ‘non-regression’ clause relating to existing employment law (Article 386, previously 6.1 of the ‘level playing field’ rules), which applies to ‘labour and social levels of protection’, defined as including ‘(a) fundamental rights at work’ (along with ‘(b) occupational health and safety standards; (c) fair working conditions and employment standards; (d) information and consultation rights at company level; or (e) restructuring of undertakings’). A footnote confirms that this does not apply to social security or pensions, and Article 386(2) clarifies that, on the EU side, ‘“labour and social levels of protection” means labour and social levels of protection that are applicable to and in, and are common to, all Member States’.

Article 387(2) (previously 6.2) sets out the non-regression rule which applies:

A Party shall not weaken or reduce, in a manner affecting trade or investment between the Parties, its labour and social levels of protection below the levels in place at the end of the transition period, including by failing to effectively enforce its law and standards.

To enforce this non-regression rule, there is a special rule on dispute settlement (Article 389, previously 6.4): in place of the general dispute settlement rules, Articles 408-410, previously 9.1 to 9.3, of the level playing field provisions apply. (More about them in a moment).

The second set of relevant rules is found in chapter 8 of the level playing field provisions, on ‘Other instruments for trade and sustainable development’. The term ‘sustainable development’ here does not only refer to environmental law, though. The point of this chapter, according to Article 397(2) (previously 8.1(2)) of the LPF provisions, is to ‘enhance the integration of sustainable development, notably its labour and environmental dimensions, in the Parties' trade and investment relationship and in this respect to complement the commitments of the Parties under Chapter 6 [Labour and social standards] and Chapter 7 [Environment and climate].’ To that end, the parties ‘recall’, among other things, ‘the International Labour Organization (ILO) Declaration on Social Justice for a Fair Globalization, adopted at Geneva on 10 June 2008 by the International Labour Conference at its 97th Session (the “2008 ILO Declaration on Social Justice for a Fair Globalization”)’ (Article 397(1), previously 8.1(1)).

The key provision on labour standards in this chapter (Article 399, previously 8.3) refers expressly to social rights:

1. The Parties affirm their commitment to promoting the development of international trade in a way that is conducive to decent work for all, as expressed in the 2008 ILO Declaration on Social Justice for a Fair Globalization.

2. In accordance with the ILO Constitution and the ILO Declaration on Fundamental Principles and Rights at Work and its Follow-up, adopted at Geneva on 18 June 1998 by the International Labour Conference at its 86th Session, each Party commits to respecting, promoting and effectively implementing the internationally recognised core labour standards, as defined in the fundamental ILO Conventions, which are: (a) freedom of association and the effective recognition of the right to collective bargaining; (b) the elimination of all forms of forced or compulsory labour; (c) the effective abolition of child labour; and (d) the elimination of discrimination in respect of employment and occupation.

3. Each Party shall make continued and sustained efforts to ratify the fundamental ILO Conventions if they have not yet done so.

4. The Parties shall exchange information, regularly and as appropriate, on the respective situations and progress of the Member States and of the United Kingdom with regard to the ratification of ILO Conventions or protocols classified as up-to-date by the ILO and of other relevant international instruments.

5. Each Party commits to implementing all the ILO Conventions that the United Kingdom and the Member States of the Union have respectively ratified and the different provisions of the European Social Charter that, as members of the Council of Europe, the Member States of the Union and the United Kingdom have respectively accepted.

6. Each Party shall continue to promote, through its laws and practices, the ILO Decent Work Agenda as set out in the 2008 ILO Declaration on Social Justice for a Fair Globalization (the “ILO Decent Work Agenda”) and in accordance with relevant ILO Conventions, and other international commitments, in particular with regard to: (a) decent working conditions for all, with regard to, inter alia, wages and earnings, working hours, maternity leave and other conditions of work; (b) health and safety at work, including the prevention of occupational injury or illness and compensation in cases of such injury or illness; and (c) non-discrimination in respect of working conditions, including for migrant workers.

7. Each Party shall protect and promote social dialogue on labour matters among workers and employers, and their respective organisations, and with relevant government authorities.

8. The Parties shall work together on trade-related aspects of labour policies and measures, including in multilateral fora, such as the ILO, as appropriate. Such cooperation may cover inter alia: (a) trade-related aspects of implementation of fundamental, priority and other up-to-date ILO Conventions; (b) trade-related aspects of the ILO Decent Work Agenda, including on the interlinkages between trade and full and productive employment, labour market adjustment, core labour standards, decent work in global supply chains, social protection and social inclusion, social dialogue and gender equality; (c) the impact of labour law and standards on trade and investment, or the impact of trade and investment law on labour; (d) dialogue and information-sharing on the labour provisions in the context of their respective trade agreements, and the implementation thereof; and (e) any other form of cooperation deemed appropriate.

9. The Parties shall consider any views provided by representatives of workers, employers, and civil society organisations when identifying areas of cooperation and when carrying out cooperative activities.

Note that a footnote to para 5 clarifies the reference to the ILO Conventions and the Council of Europe Social Charter:

Each Party maintains its right to determine its priorities, policies and the allocation of resources in the effective implementation of the ILO Conventions and the relevant provisions of the European Social Charter in a manner consistent with its international commitments, including those under this Title. The Council of Europe, established in 1949, adopted the European Social Charter in 1961, which was revised in 1996. All Member States have ratified the European Social Charter in its original or revised version. For the United Kingdom, the reference to the European Social Charter in paragraph 5 refers to the original 1961 version.

But again, how does all this (including the extensive environmental provisions that accompany the labour commitments) get enforced? Again, the main dispute settlement rules don’t apply: instead the parties are subject to Articles 408 and 409, previously 9.1 and 9.2, of the level playing field provisions, in place of the general dispute settlement rules (Article 407, previously 8.11). But notice that unlike the non-regression rules, Article 410, previously 9.3, does not apply.  Let’s now see what that means in practice.

Article 408 (previously 9.1) states that the parties must enter into consultation, which may involve information from ILO bodies. Article 409 (previously 9.2) then provides for a panel of experts to be set up, if the consultations are not successful. These experts should also seek guidance from ILO bodies (para 6). The panel is to deliver a report, but para 9 of Article 409 is at pains to point out that this process is toothless:

For greater certainty, the Parties share the understanding that if the Panel makes recommendations in its report, the responding Party does not need to follow these recommendations in ensuring conformity with the Agreement.

Article 409(19) moreover applies some parts of the dispute settlement rules to these panels, but crucially not the parts dealing with remedies. More precisely, it provides that:

Except as otherwise provided for in this Article, Article 739(1) (ex INST.14(1) [Arbitration procedure]), Article 740 (ex INST.29 [Arbitration tribunal decisions and rulings]), and Articles 753 to 758 (INST.30 [Suspension and termination of the arbitration proceedings], Article INST.31 [Mutually agreed solution], Article INST.32 [Time periods], Article INST.34 [Costs], Article INST.15 [Establishment of an arbitration tribunal], or Article INST.28 [Replacement of arbitrators]) as well as Annexes 48 and 49 (previously ANNEX INST [Rules of Procedure for Dispute Settlement] and ANNEX INST-X [Code of Conduct for Arbitrators]), shall apply mutatis mutandis.

Having said that, it is possible that the panel process could have a political impact, as it might be useful for those objecting that the UK (or EU) was not upholding social rights to have a panel report in their favour that they could wave around.

More importantly, there is a key distinction between arguments over the sustainable development provisions – where the dispute stops here – and disputes over non-regression, where, as noted above, Article 410 (ex-9.3) also applies. Article 410 applies the same rules on panels of experts set out in Article 409, but then adds that:

2. For the purposes of such disputes, in addition to the Articles listed in Article 409(19) (ex-9.2(19) [Panel of experts]), Articles 749 and 750 (ex-INST.24 [Temporary remedies] and Article INST.25 [Review of any measure taken to comply after the adoption of temporary remedies]) shall apply mutatis mutandis.

3. The Parties recognise that, where the responding Party chooses not to take any action to conform with the report of the panel of experts report and with this Agreement, any remedies authorised under Article 749 (ex-INST.24 [Temporary remedies]) continue to be available to the complaining Party.

What does this mean in practice? Article 749 states that: a) the losing party must offer compensation if the winning party requests it (para 1); b) the winning party can suspend parts of the TCA if either it decides not to request compensation, or if discussions about compensation do not result in agreement (para 2); c) there are some limits on which provisions can be suspended (para 3); d) suspension must not exceed ‘the level equivalent to the nullification or impairment caused by the violation’ (para 5); e) suspension can relate to any part of the trade heading of the treaty (para 6); f) suspension can also relate to any other part of the treaty subject to the general dispute settlement rules, ‘if the complaining party considers that it is not practicable or effective to suspend obligations’ relating to trade, ‘and that the circumstances are serious enough’ (para 8, presumably still subject to the limits in para 3); g) suspension takes effect 10 days after notifying it, unless the losing party argues that it is disproportionate or in breach of the rules against cross-retaliation (para 10); h) this request delays the suspension until the arbitrators rule on this issue, which must be within 30 days (para 11); and i) suspension is ‘temporary’, lasting until the parties negotiate a solution, agree that the losing party has complied with its obligations, or the losing party has amended its law in order to comply with them (para 13).

What if the losing party claims that it has complied with the ruling, but the winning party does not agree? This is covered by the reference to Article 750, which provides that the losing party must notify any compliance measure to the winning party, which must end its retaliation within 30 days (para 1). If the parties do not agree that the losing party is now complying with the ruling, the winning party may request the arbitration panel to rule on this; the panel must rule within 46 days, and the retaliation must end if it agrees that the losing party is now in compliance (para 2). It is also possible that the losing party is partly in compliance, in which case the level of retaliation must be reduced. 

I’ve left out a discussion of what happens in the event of divergence following future developments in labour law (which the TCA refers to as ‘rebalancing’, because there’s no express mention of human rights in that context. Note, however, that this process is also subject to possible suspension of obligations, subject to special rules on arbitration and a different (higher) threshold to show that this divergence affects trade or investment (‘material impacts on trade or investment…arising as a result of significant divergences’).

 

Data protection issues in the TCA

The immediate starting point of the TCA on data protection is the further transition period (which calls itself a ‘specified period’) during which the UK is still covered by EU data protection law (Article  782, previously FINPROV.10A: note this is excluded from the dispute settlement rules). This period lasts for four months, but is extended to six months unless one of the parties objects (para 4), but can end earlier if the EU Commission adopts ‘adequacy decisions’ simplifying transfer of personal data to the UK on the basis of the GDPR or the law enforcement directive. It is subject to the UK retaining EU data protection law in force during this period (para 1), and not making certain changes to its law (listed in para 3) without the EU’s agreement.  If the UK breaches those terms, the transition period ends (para 5). The process of the EU agreeing to amendments is further spelled out.  

UK are adopted by the European Commission under Article 36(3) of Directive (EU) 2016/680 and under Article 45(3) of Regulation (EU) 2016/679, or (b) on the date four months after

After that point, the data protection rules in the criminal law part of the TCA become more relevant. Article 525 (ex-LAW.GEN.4), which is similar to the general provision on human rights and criminal law cooperation discussed above, provides that criminal law cooperation ‘is based on the Parties’ long-standing commitment to ensuring a high level of protection of personal data. A number of basic data protection principles are then spelled out, but the mechanism to enforce this is the suspension clause for the criminal law part, discussed above. It states that in the event that a data protection adequacy decision ceases to apply, or ‘[i]n the event of serious and systemic deficiencies within one Party as regards the protection of personal data’, it is possible for some or all of the criminal law part of the TCA to be suspended (Article 693(2), ex-LAW.OTHER.137(2)). The rules on suspension of the criminal law part on human rights grounds, discussed above, apply. (Update, April 28, 2021: the EU institutions will adopt a declaration addressing this issue).

Note that there are special provisions on suspension of exchanges of passenger name records (Article LAW.PNR 38) but in this case, suspension can be for any grounds, not only human rights or data protection grounds. Article LAW.PRUM.19 provides for a special suspension rule regarding DNA, vehicle and fingerprint data exchanges only in cases of divergence of legislation. The criminal law dispute settlement rules don’t apply to these suspensions.

Finally, the TCA does not appear to include any express provision dealing with what happens if the Commission does not adopt an adequacy decision within the data protection transition period. (Update, 28 April 2021: the Commission has announced its intention to adopt a draft adequacy decision).

 

Role of the courts on the EU side

The EU courts (and Member States’ national courts) have long had significant roles as regards the protection of human rights within the EU legal order. What role would they have under the TCA?

The first thing to point out is that they would not have any jurisdiction directly as far as the UK was concerned. Any disputes about the application of the TCA within the UK are up to courts in the UK to decide (with the exception of disputes about UK participation in EU funding programmes, such as the research funding legislation). However, EU or Member States’ court rulings could have some indirect impact on the UK – for instance, a ruling that some or all persons subject to UK extradition requests cannot be sent to the UK obviously has an impact upon the UK. (Likewise, UK court rulings applying the treaty could have an equivalent indirect impact upon the EU or individual Member States).

The second thing to point out is that, as observed at the beginning of this blog, human rights issues arise as regards the TCA in a different way than they arise within the scope of EU law as between EU Member States.  In particular, Article 7 TEU – which provides for an essentially political process of determining whether a Member State has seriously and persistently breached EU law (or runs a risk of doing so) does not apply. While the general rules of TCA human rights conditionality are very broadly comparable to Article 7 TEU, they are far from identical. (On the details of Article 7, see further here; on its relationship with ‘ordinary’ EU law, see discussion here).

What if the EU decided to terminate or suspend the TCA on general human rights grounds (the ‘essential elements’ clause)? The starting point is Article 218(9) TFEU, which provides for the suspension of treaties with non-EU countries by the Council, on the basis of a proposal from the Commission.  The European Parliament has no role, and the Council implicitly votes by qualified majority, as it is the default rule for Council voting. (The Council must be unanimous when signing or concluding association agreements, according to Article 218(8); but the reference to the ‘procedure’ there does not apply to para 9). There is, however, no express rule for terminating a treaty.

As for the specific human rights provisions of the TCA, the Council decision on signing the TCA provides that the Commission can take decisions to retaliate as part of the dispute settlement process – which would be relevant to some social rights disputes. The proposal to conclude the TCA provides for the same rule. There is no specific rule on terminating or suspending the criminal law part treaty on human rights grounds, so presumably Article 218(9) TFEU applies, at least as regards suspension. For data protection, EU Commission adequacy decisions can be reviewed via the national courts asking the CJEU questions about their validity – see most recently Schrems II, discussed here.

This well-trodden route to challenging a data protection adequacy decision might well be used again if the Commission adopted an adequacy decision for the UK. But it is an open question how other decisions to suspend or terminate the TCA (or parts of it) on human rights grounds might be challenged in practice. While the CJEU judgment in Racke said that national courts can ask the CJEU if it was valid for the EU to decide to terminate a treaty in light of international law, that  judgment was based on the treaty in question conferring rights on individuals – but this is ruled out for the TCA, except for social security and (on the EU side) the criminal law provisions.

Challenging an implied decision not to trigger suspension or termination might be even more difficult – although this may depend on whether EU trade remedies law is amended to allow unions and environmental NGOs to request the Commission to begin a dispute settlement process, which might mean that its refusal to do so could be challenged in the EU courts. Issues might also arise if the EU decides to end a suspension or retaliation.

It is also possible that national courts might start to come to their own conclusions about the human rights record of the UK (or conversely, courts in the UK might start to do so as regards the EU, or at least some of its Member States). To some extent, this possibility is accommodated by the possibility of asking for human rights safeguards in extradition proceedings, noted above. More broadly the question might arise if the CJEU’s unwillingness to suspend application of the European Arrest Warrant system on human rights grounds pending an Article 7 decision against a Member State (see the 2018 judgment discussed here, as confirmed in December 2020) applies by analogy to the TCA – given that, as noted already, Article 7 does not apply. Of course, the constraints of Article 7 no longer apply to the UK either.

 

Barnard & Peers: chapter 27

Photo credit: www.coe.int

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