Fumbling towards Ecstasy? Canada as an associate member of the EU

 

Professor Steve Peers, Law School, Royal Holloway, University of London

Photo credit: Martin St-Amant, via Wikipedia Commons

“Living next to [the United States] is in some ways like sleeping with an elephant. No matter how friendly and even-tempered is the beast, if I can call it that, one is affected by every twitch and grunt.”

-          Pierre Trudeau, former Prime Minister of Canada

 

Introduction

Can Canada become an ‘associate member’ of the EU? What might that mean, and how might a process to this end work? There are few details yet, but this blog post explores the broad parameters of the law and politics of such a possibility.

The Legal Framework

Canada is not seeking to be a Member State of the EU – a process governed by Article 49 TEU. Nor is it seeking to sign an association agreement – as referred to in Article 217 TFEU. Rather the status under discussion is that of ‘associate member’ – a concept not referred to in the EU Treaties.

However, the absence of an explicit reference to such a concept does rule out an agreement to create such a thing. EU external relations law is replete with the creation of new categories of relationship to address the political priorities of the day, such as ‘Euro-Mediterranean Agreements’, ‘Europe Agreements’ and ‘Partnership and Cooperation Agreements’, to name just some.

In fact, the absence of a formal concept of ‘associate member’ leaves the EU and Canada free to innovate both the procedure and content of their relationship. Instead of being bound by the ‘staircase’ metaphor that came to dominate EU/UK post-Brexit relations, Canada and the EU can just take the elevator – although the underlying trade-off (greater market access in return for greater alignment with the EU) is likely to remain in some form.

Unlike membership or association, the ‘associate member’ concept does not necessarily even imply a treaty; Canada and the EU can simply declare the existence of such a status at the upcoming summit. Associate membership is an unidentified legal object; but it can still be a definite political outcome.

Nevertheless, both the EU and Canada have said that they expect something concrete to develop from deepening their relationship, even if it does not have the title of ‘associate member’. Let’s look at what each of them has recently said.

Issues for negotiation

In her State of the Union speech, the EU Commission President Ursula von der Leyen stated:

We will move from CETA to an Alliance for the Future to create a common prosperity and economic security space. We will work on intelligent manufacturing. We will create a tech alliance. We will integrate defence industrial bases. We will make the Arctic a flagship joint project. We will work on energy, critical minerals and batteries. On AI, quantum, cyber and economic security.

(CETA is the existing EU/Canada free trade agreement).

In his speech to the European Parliament, Canadian Prime Minister Mark Carney said:

Canada and Europe should secure our strategic autonomy through deep cooperation in the full range of strategic capabilities, including critical minerals, defence industrial capacity, AI and compute, energy security, space, and payments.

We should move toward seamless, digital trade in non-agricultural goods and a wide range of services.

We should deepen our people-to-people ties, allowing our youth to live, work and study where they want on either side of the Atlantic.

Canadian membership of Erasmus+ can give your students, and ours, more opportunity to learn at some of the world’s top universities, to broaden their horizons, and to build lasting ties that will sustain our alliance for the future.

Canadian membership of the next generation of Horizon would allow us to pool resources, cooperate on frontier technologies, and leverage our world-class research institutes and universities.

Yesterday, President von der Leyen announced a “new European Corporation on Critical Raw Materials” to obtain and stockpile the material needed for electric cars, chips and batteries, clean technology, and defence. Canada has deposits of over 34 critical minerals, and we are among the top producers of the 10 most essential for the world’s energy transition. Our alliance can help fill Europe’s need for reliable supply, Canada’s need for advanced processing capabilities, and our common objective to build complete value chains.

Canada can contribute LNG and hydrogen at large scale to support Europe’s energy security including by developing and leveraging new port infrastructure in the High North and on our East Coast. We, in turn, can benefit from your leadership in many clean energy technologies.

We can pool new sovereign compute capacity and build more secure broadband connections between Europe and Asia via our common geography.

Canada and Europe can join forces to develop AI safety protocols, coordinate common standards, and strengthen transparency, all while developing applications so our governments and companies can serve our citizens better. 

Canada and Europe should also consider exploring an integrated market for financial services to broaden choice and reduce costs for our citizens, improve access to capital for our companies while maintaining our world-leading financial resilience.

Comparing the two, we can see that there are more details offered on the Canadian side. There are several points in common: energy, defence industries, critical minerals, AI and computing. But it is notable that Carney raises two issues not mentioned on the EU side: financial services and youth mobility.

There is no inherent reason why the various issues for further cooperation all have to addressed in a single treaty. Some of them might be addressed better by commercial negotiations between companies (supported by governments/the EU on each side), and some might be addressed by non-binding ‘soft law’ encouraging developments. The EU tends to prefer single overarching treaties, but has compromised on this goal with Switzerland (settling for a common institutional framework for some EU/Swiss treaties), and the UK (there is a single treaty, but with different rules for different parts of it; it is effectively several separate treaties wearing a single trenchcoat). Further EU/Canada developments could follow either model.   

On one issue in particular – youth mobility – the obvious parallel is with EU/UK relations, where the EU seeks to negotiate its first youth mobility treaty (EU Member States have a number of such arrangements already, including agreements with Canada). Since the UK/EU negotiations have not concluded yet, there is no final template which could just be copied; and in any event, there is no reason for such arrangements to be identical (the UK’s youth mobility schemes differ greatly). Despite the existence of schemes between Canada and many Member States already, there could be added value in extending these schemes for longer than one year, or (as the EU has demanded from the UK) agreeing equal treatment in tuition fees.

It is possible that individual future treaties between the EU and Canada will raise legal issues on both sides: tuition fees, for instance, could fall within provincial jurisdiction on the Canadian side, and the EU courts have twice been asked already about the compatibility of EU/Canada treaties with EU law – the investment provisions of the EU/Canada free trade agreement, and the data protection rules in the EU/Canada passenger name records treaty.  (The various processes for referring issues to the Supreme Court of Canada to resolve their constitutionality broadly resemble the process of asking the CJEU to rule on whether planned treaties are compatible with EU law, set out in Article 218 TFEU).

However, one striking feature of EU external relations is that despite their legal complexity, the EU usually gets to where it wants to go in the end, even if (as with the EU/Canada passenger name records treaty) a planned treaty has to be amended to be compatible with EU law. (Member States do not have a veto on all treaties with non-EU countries; this depends on their subject-matter, and economic issues such as trade are subject mostly to qualified majority voting. Nor do Member States always have to be parties to treaties alongside the EU).

The broader context

Although neither the Commission President nor the Canadian Prime Minister mentioned the elephant by name, the underlying dynamic of the EU and Canada seeking a closer relationship is the current administration of the United States – which is far from friendly or even-tempered towards Canada, the EU, or most of the rest of the world (other than Putin’s Russia and North Korea). But despite the silence, the listeners to the speeches in the European Parliament – and the broader audience outside – knew exactly who was being referred to. As a great Canadian once sang, everybody knows that the dice are loaded. And yet, Trump might still manage to bankrupt another casino.

There’s a historical resonance to this conflict too. Growing up in Canada, I was never far from a War of 1812 battlefield; studying Canadian history, it is striking how much of the basic foundations of the Canadian state developed as a reaction to threats from the United States. In recent decades, characterised by alliance and friendship between the two countries, this history of conflict began to look ancient, but now the old threats are new again. Donald Trump has never met an ally he didn’t hate.

Further development of EU/Canada relations might face legal and political complications; after all, several Member States have still not ratified CETA (it’s being applied provisionally). But any differences of opinion will not result in the EU threatening annexation or economic coercion, renaming lakes, or posting violent memes about Canada on social media. Both sides are free to develop their relationships elsewhere (as they are doing). And if Trump – as threatened – imposes tariffs against the EU as a result of its friendship with Canada, the EU can quickly retaliate.

As for less aggressive partners, it’s not clear just how close Canada’s relations with the EU might become, for instance compared to Norway, Switzerland or the UK. The plans seem to fall short of full participation in the internal market or free movement of people. On youth mobility in particular, though, it’s possible that Canada might leapfrog the UK, given the slow pace of UK/EU talks. As another great Canadian once sang, this would be ironic indeed: the good advice that the UK just didn’t take on Brexit.

How the New Appeal Filtering Mechanism in the EU Courts Affects Judicial Review of CSDP Missions

 

Antje Kunst*

Photo credit: Lucalupe, via WikimediaCommons

 

Introduction

In 2024, a new procedural requirement was introduced whereby appeals against General Court judgments delivered in proceedings brought under Article 272 TFEU (jurisdiction to rule on arbitration clauses in contracts concluded by or on behalf of the EU), are subject to an appeal filtering mechanism established by Article 58a of the Statute of the CJEU.

Since 1 September 2024, parties seeking to appeal a General Court judgment in an action brought under Article 272 TFEU must demonstrate that their appeal raises ‘an issue that is significant with respect to the unity, consistency, or development of Union law’. By contrast, no such admissibility requirement applies to appeals against judgments of the General Court in actions brought under Article 263 TFEU (actions for annulment), which may be pursued by staff seconded to Common Security and Defence Policy (CSDP) missions or in actions brought under Article 270 TFEU (staff cases).

The implications of the appeal filtering mechanism are particularly significant for staff serving in CSDP missions as contracted staff. In the absence of a EU Staff Regulations framework comparable to that applicable to ordinary EU civil servants, such staff cannot bring employment-related disputes under Article 270 TFEU. Instead, they must rely on an arbitration clause contained in their employment contracts, with Article 272 TFEU providing the procedural basis for bringing such disputes before the EU courts.

This blog argues that extending the Article 58a appeal filter to cases brought under Article 272 TFEU does more than reduce the workload of the Court of Justice. The reform further restricts, for contracted staff serving in CSDP missions the opportunities to obtain judicial review by the Court of Justice, in an area where access to judicial review is already subject to constraints, including those arising from Article 275  TFEU and Article 24(1) TEU.

The amendment therefore raises a broader constitutional question: can the  objective of reducing the Court’s workload legitimately come at the expense of effective judicial protection and meaningful access to judicial remedies for contracted staff serving in CSDP missions? The reform also raises concerns about equal treatment. It creates a distinction between, on the one hand ordinary EU civil servants and seconded staff serving in CSDP missions who have the possibility of appealing to the Court of Justice, and, on the other hand, contracted staff, who are denied equivalent access to appellate review.

Key Aspects of the New Requirement

Pursuant to the 2024 amendment to Article 58a of the Statute an appeal against the General Court in proceedings concerning ‘the performance of a contract containing an arbitration clause, within the meaning of Article 272 of the [TFEU]’ may proceed only if the Court of Justice first grants leave to appeal.

The admissibility threshold for appeals by contracted staff serving in CSDP missions is demanding. An appellant must demonstrate that the appeal raises ‘an issue that is significant with respect to the unity, consistency or development of Union law’. It is therefore no longer sufficient to argue that the General Court committed an error in its interpretation of the law or assessment of the facts in the individual case. Instead, the appellant must establish that the issue extends the interests of the individual litigant and demonstrate why its resolution matters for the EU legal order as a whole.

The appeal therefore requires a form of ‘second-level’ justification: first, the appellant must identify alleged errors of law in the judgment, second, and critically, the appellant must explain why that error raises an issue significant for the unity, consistency or development of Union law. (see the Court Order of 29 April 2025 in SC v Eulex Kosovo (Case C-881/24), the first case to which the new appeal filter was applied). In this respect the test is comparable to the approach of the UK Supreme Court which filters appeals according to whether they raise an ‘arguable point of law of general public importance’.

The Court of Justice determines whether the conditions laid down in Article 58a of the Statute are satisfied by means of a reasoned order rather than a judgment. Where leave to appeal is refused, the judgment of the General Court becomes final, thereby bringing the litigation to an end without substantive review by the Court of Justice.

What raises a wider issue?

In employment disputes involving contracted staff of CSDP missions, appellants must identify a legal issue that extends beyond the particular employment relationship or factual circumstances of the CSDP mission concerned. This requirement may be met where an appeal raises, for example, a question  of EU law that could affect numerous contracted staff across different CSDP missions; where existing case-law is uncertain or inconsistent; or where clarification by the Court of Justice would contribute to  a coherent and consistent body of EU law applicable to all staff serving in the Union.

An appellant might be able to convince the Court that its interpretation of a fundamental right in a CSDP employment dispute could have implications beyond that specific context and provide guidance for future disputes in other areas of EU  law, such as EU restrictive measures, public procurement, competition or migration and asylum.  This may include disputes involving other EU bodies, missions or other actors subject to EU law. (see in this respect paras. 22 and 24 of the Court Order 29 April 2025 in SC v Eulex Kosovo (Case C-881/24))

Furthermore, an appellant might be able to successfully argue that the case raises a question of principle concerning the scope of the Court’s jurisdiction under Articles 24 (1) TEU and 275 TFEU, in particular whether and to what extent the Common Foreign Security Policy (CFSP) limitations on judicial review apply to employment-related decisions in CSDP missions. This question could have implications beyond the individual dispute, including for comparable cases involving other CSDP missions, EU bodies, or categories of EU personnel. It could also have broader implications for the principle of effective judicial protection under EU law, particularly where the contested measure affects fundamental rights or other rights protected by EU law.

Rationale for an appeal filter related to decisions of Boards of Appeal

The appeal filtering mechanism was first introduced in 2019 for appeals brought before the Court of Justice against judgments of the General Court concerning decisions of the Boards of Appeal (BoAs) of certain EU offices and agencies.

The EU legislature focussed primarily on the EU agencies with powers over intellectual property rights, plant variety rights, chemicals regulation and aviation safety (EUIPO, CPVO, ECHA and EASA). The rationale was that decisions in these areas had already undergone administrative review by a specialised BoA and judicial review by the General Court, while a significant number of appeals were manifestly inadmissible or unfounded (see here).

In practice, this admissibility requirement has constituted a substantial threshold, with the Court of Justice permitting only a limited number of appeals to proceed beyond the initial filtering stage.

Rationale for an appeal filter related to Article 272 TFEU disputes

The 2024 extension of the Article 58a filtering mechanism to appeals concerning Article 272 disputes was justified primarily by considerations of judicial efficiency. The legislator’s rationale was that such disputes most frequently require the General Court to apply, to the substance of the dispute, the national law to which the arbitration clause refers. (see here) Such appeals would generally be less likely to raise issues of EU law.

A CSDP employment dispute is an atypical Article 272 TFEU dispute

A CSDP employment dispute will rarely require the application of national law (see  JF v EUCAP Somalia) and is not a typical Article 272 TFEU dispute. Disputes involving contracted staff of CSDP missions often involve mission-specific instruments, such as Standard Operating Procedures (SOPs) and Operation Plans (OPLANs), as well as the analogous application of certain provisions of the EU Staff Regulations (see the judgment in Montanari v Eucap Sahel Niger). They may also involve the application of general principles of EU law and fundamental rights to contractual disputes (see JF v EUCAP Somalia), as well as questions concerning the scope of the Court of Justice’s jurisdiction in the CFSP context (see H v Council and Others, even if a seconded CSDP staff case ). This makes it particularly important to ensure that restrictions on access to an appeal before the Court of Justice do not prevent the development of authoritative guidance on questions affecting 1300 civilian staff working in CSDP missions, especially since only contracted staff, and not their seconded colleagues, are required to seek permission to appeal when challenging General Court judgments.

Where the EU Staff Regulations do not apply to such staff, the case law has established that the applicable legal framework derives primarily from the employment contract and mission specific instruments such as SOPs, supplemented, where relevant, by the analogous application of certain provisions of the EU Staff Regulations as well as certain general principles of EU law and the Charter of Fundamental Rights, as illustrated by JF v EUCAP Somalia.

Precisely because the legal framework governing CSDP contracted staff remains fragmented and continues to evolve, there is a strong argument that effective appellate review is of particular importance in this area.

Moreover, an appeal to the Court of Justice is not necessarily merely a second level of review. It may provide an important opportunity for the Court to give authoritative clarification of unresolved jurisdictional and constitutional questions concerning the scope of judicial protection in the CFSP context.

Conclusion

The appeal-filtering mechanism introduced by Article 58a of the Statute of the Court of Justice places international contracted staff serving in CSDP missions at a significant disadvantage compared with other categories of EU personnel in terms of access to appellate judicial review. EU staff subject to the EU Staff Regulations may bring claims under Article 270 TFEU, while seconded CSDP staff can bring actions under Article 263 TFEU. By contrast, international contracted staff whose disputes fall under Article 272 TFEU face an additional – and potentially insurmountable – hurdle when challenging a General Court judgment before the Court of Justice.

This disadvantage is all the more significant because the legal framework governing employment within CSDP missions remains fragmented and continues to develop. Restricting access to the Court of Justice therefore risks limiting not only the right of individuals to effective judicial protection, but also the development of a coherent and authoritative body of case law on employment within CSDP missions.

The Court of Justice can do little to remedy the disadvantage created by Article 58a of the Statute itself; addressing this issue is a matter for the EU legislature that should not be delayed.

 

*Antje Kunst is an international lawyer and barrister of Garden Court North Chambers, admitted to the Bar of England and Wales, and the Bar of Berlin, advising and representing individuals in a wide range of matters related to fundamental rights within the CFSP and other fields including staff cases. She has appeared in numerous cases before both the Court of Justice and the General Court of the Court of Justice of the European Union.  She acted as Counsel for JF in JF v EUCAP Somalia, Case 194/20. She represents SC in SC v Eulex Kosovo, Case C-881/22, and obtained the Court Order of 29 April 2025.