The Regulation of Shame: When Far-Right Ideas Become EU Return Law

Dr. Izabella Majcher, Independent Consultant

Photo credit: Shutterstock

 

*References to the Regulation's provisions reflect the agreed text at the time of writing and may change following legal-linguistic revision

Amid chants of "send them back" from some Members of the European Parliament, the Parliament adopted the EU Return Regulation on 17 June 2026 by 418 votes to 218, with 30 abstentions. Such a broad majority on legislation that would otherwise have been highly divisive was made possible by the European People's Party (EPP)'s alliance with far-right groups, breaking the political firewall traditionally maintained in several Member States. The vote drew criticism from NGOs, academics and journalists, and also prompted concern within the United Nations. Ahead of the vote, nearly 50 current and former international human rights experts issued a joint statement expressing their concerns. Following its adoption, the UN High Commissioner for Human Rights publicly expressed his deep regret.

The parliamentary vote marked the culmination of an exceptionally rapid legislative process. As announced in European Commission President Ursula von der Leyen's Political Guidelines for her second Commission, the Commission presented its proposal for a Return Regulation on 11 March 2025 (discussed here). The Council adopted its position on 8 December 2025 (discussed here), followed by the European Parliament's report on 26 March 2026 (discussed here). The subsequent interinstitutional negotiations progressed at an equal pace, culminating in the final trilogue on 1 June 2026. Once the text has undergone legal-linguistic revision, it will be published in the Official Journal of the European Union. The Regulation will become applicable one year later, replacing the Return Directive, although several provisions—including those on return hubs, preparations for the European Return Order form and readmission procedures—will apply immediately.

Given the political support from right-wing groups and the underlying objective of the proposal of increasing returns, it is unsurprising that the Regulation relies heavily on coercive measures while lowering safeguards across the board. What remains less clear is whether it will actually increase the number of returns, except perhaps at the expense of compliance with international and EU human rights standards. This blog highlights ten aspects of the Regulation that raise particularly serious human rights concerns before offering some concluding reflections.

 

1)    Return decisions and effective remedy

The Regulation introduces several changes that collectively weaken the assessment of the risk of refoulement. It allows return decisions either to omit the country of return or to designate several possible countries of return. The person need only be informed of the intended country of return sufficiently in advance of removal (Articles 7, 13 and 24). The Regulation also clarifies that Member States are not precluded from issuing a return decision where a hindrance to removal exists; where a risk of refoulement has been identified, removal to the country concerned must simply be postponed. Where the person indicates, or the authorities otherwise become aware, that removal would breach the principle of non-refoulement, the competent authorities must either refer the person to the appropriate procedure, including the asylum procedure, or assess the risk of refoulement themselves. In doing so, they may rely on or take into account any previous assessment of that risk. It is possible that the risk of refoulement is assessed by authorities issuing or enforcing a return decision.

This approach makes the right to an effective remedy all the more important. Compared with the Directive, the Regulation provides greater detail on the applicable standards (Article 26). It requires that the remedy provide for a full examination of both facts and points of law. Where material brought to the attention of the court or tribunal hearing the appeal, as supplemented or clarified through adversarial proceedings, indicates that the principle of non-refoulement may be at risk, the court or tribunal must verify compliance with the obligations arising from that principle. As regards the suspensive effect of appeals, the Regulation does not establish an automatic right to suspension. Instead, it clarifies that Member States must ensure, in full compliance with Article 47 of the Charter, that removal can be suspended before it is carried out (Article 28). Suspension may be granted upon request by the person concerned, unless national law also provides for suspension ex officio.

 

2)    Mutual recognition of return decisions

Mutual recognition of return decisions is presented as one of the Regulation's key innovations and as a part of the broader "common system for returns" (Article 42). In reality, however, the mechanism is neither new nor straightforward to implement. Under it, a Member State that apprehends a person who has already received a return decision in another Member State may recognise and enforce that decision instead of issuing a new one (Article 9). This is facilitated through a European Return Order—a standard form containing the main elements of the return decision—which is made available to Member States through the Schengen Information System. The mechanism itself is not new. It was already established by a 2001 Council Directive, although it appears to have been used only sparingly in practice. The Commission originally proposed making mutual recognition mandatory, but this approach did not receive the support of the co-legislators. As adopted, the mechanism therefore remains optional. Nevertheless, Member States are required to put in place preparatory measures, and the Commission may submit legislative proposals following an assessment to be carried out within two years of the Regulation becoming applicable. Recognising another Member State's return decision raises both practical and legal challenges. Since the grounds for lawful stay are not harmonised across the EU, a person may be in an irregular situation in one Member State but lawfully present in another. The enforcing Member State may therefore face litigation while also bearing the costs of removal and, where applicable, detention. More fundamentally, mutual recognition of return decisions and entry bans raises proportionality concerns because it exports the most restrictive national approaches across the Union, while no equivalent system exists for the mutual recognition of lawful residence statuses.

 

3)    Voluntary departure

The Regulation adopts a confusing approach to so-called voluntary departure. Under the Directive, Member States are required to grant a period for voluntary departure of between seven and thirty days, subject to three exceptions: where there is a risk of absconding, where an application for legal stay has been rejected as manifestly unfounded or fraudulent, or where the person poses a risk to public policy, public security or national security (Article 7). The Regulation removes this obligation and instead leaves Member States with a choice between granting a period for voluntary departure and requiring the person to leave immediately (Article 7). Moreover, where a period for voluntary departure is granted, it need no longer be at least seven days. These changes sit uneasily with the EU's broader approach to return, which has consistently favoured voluntary departure over forced removal and has invested considerable resources in assisted voluntary return and reintegration programmes. Indeed, the Regulation itself requires Member States to ensure the availability of return and reintegration programmes, which may be supported or financed by the EU. It further specifies that such programmes should provide a broad ranging assistance and incentives, including reintegration support (Article 46). Voluntary return is generally more conducive to a safe and dignified return and is also in the interest of Member States, given that forced removals are considerably more costly and complex to organise. Arguably, these amendments are intended primarily to signal a more coercive approach rather than to produce a significant change in practice. Even under the Directive, Member States are not required to grant a period for voluntary departure where there is a risk of absconding or concerns relating to public policy or security. Conversely, the Regulation still allows Member States to grant voluntary departure at their discretion, except for persons considered to pose security risks (see more on this category here).

 

4)    Duties and sanctions

The Regulation establishes an extensive—and at times overlapping—set of obligations for persons subject to return, raising concerns regarding legal certainty and proportionality. It introduces a general duty to cooperate (Article 21), encompassing more than a dozen specific obligations. These include appearing before third-country authorities for the issuance of travel documents or the verification of identity or nationality, and complying with third-country entry requirements, including health-related requirements. The list is open-ended, as it also incorporates obligations provided for under national law.

The Regulation also empowers Member States to impose various restrictive measures, including obligations to remain within a designated geographical area, reside at a specific address, or report periodically to those authorities (Article 23). Under international human rights law, these measures constitute restrictions on freedom of movement. Nevertheless, the Regulation does not require that they be necessary to achieve a legitimate objective. In addition, it introduces a further category of movement restrictions that may be imposed, implicitly, where there is a risk of absconding (Article 23c), including bail and electronic monitoring. Although labelled "alternatives to detention", these measures may also be imposed where detention itself would be unlawful—for example, after the maximum permissible period of detention has expired.

Failure to comply with some of these obligations may be treated as evidence of a risk of absconding, or it may directly justify detention. Other consequences include reductions in social allowances, financial penalties, extensions of entry bans and criminal sanctions, including imprisonment (Article 23b). In practice, almost any person subject to return could fail to comply with one or more of these numerous obligations, thereby exposing them to a cascade of restrictive measures and sanctions. The breadth of this regime falls short of the requirements of necessity and proportionality, leaving considerable scope for arbitrary application.

 

5)    Investigative measures

At the Council's initiative, the Regulation introduces a new category of so-called "investigative measures" (Article 23a). These measures authorise the authorities, without the person's consent, to search persons subject to return, their homes and other relevant premises, and to seize personal belongings, including electronic devices. The Regulation also permits the use of additional investigative measures provided for under national law. Searches of homes and other premises require either prior judicial authorisation or, where permitted under national law, an administrative order where the search is necessary, proportionate and duly justified by urgency. The Regulation specifies that investigative measures may be used where necessary, proportionate, and duly justified to ensure an effective return. It also requires that they respect fundamental rights and remain subject to the safeguards and remedies available under Union and national law. Nevertheless, the provision raises significant concerns in practice. It may facilitate police raids on homes, shelters and other premises accommodating or supporting people in an irregular situation, potentially relying on racial profiling and creating a climate of fear within migrant communities.

 

6)    Detention

The Regulation significantly expands the legal framework governing detention, both by broadening the grounds and by increasing its maximum duration (Article 29). Under the Directive, Member States may impose pre-removal detention on two grounds only: where there is a risk of absconding or where the person avoids or hampers the preparation of return (Article 15(1)). Unlike the Directive, the Regulation lays down detailed criteria for determining whether a person poses a risk of absconding (Article 21a). However, these criteria are drafted so broadly that most persons in an irregular situation are likely to satisfy at least one of them and, crucially, many bear little relation to the person's actual propensity to abscond. The Regulation establishes four criteria that give rise to a rebuttable presumption of a risk of absconding, including irregular entry into the territory. It further lists seven additional criteria—including the absence of a reliable address—and permits Member States to rely on criteria laid down in national law to assess the risk of absconding.

In addition to the two detention grounds contained in the Directive, the Regulation adds three further grounds. First, Member States may detain a person considered to pose a security risk, including a threat to public policy, public security, national security or any other security threat identified under national law. This broad ground blurs the distinction between administrative immigration detention and criminal detention. Given that immigration detention affords significantly fewer procedural safeguards than criminal detention, it should remain limited to grounds directly related to the enforcement of removal. Second, detention may be imposed in order to determine or verify a person's identity or nationality. This ground is particularly problematic because such procedures may take considerable time, for example, when a person is stateless, or their identity documents are not recognised. Moreover, detention may be imposed on this ground even in the absence of any risk of absconding. Third, a person may be detained for failing to comply with one of the Regulation's numerous cooperation obligations (discussed above), such as complying with carriers' travel requirements, fulfilling third countries' entry requirements, or complying with electronic monitoring requirements. Fourth, Member States may also rely on detention grounds established under their national law where these are considered necessary to ensure an effective return procedure. Leaving the determination of detention grounds to national law undermines the very objective of harmonising return-related measures across the EU.

The Regulation also dramatically extends the maximum permissible period of detention. Under the Directive, detention may last up to six months and may be extended by a further twelve months where the removal operation is delayed due to a lack of cooperation by the person concerned or the third country. Under the Regulation, the initial detention period may last up to 12 months and may then be extended by a further 12 months on the same grounds, as well as in "exceptional" circumstances provided for under national law. The resulting two-year period may be prolonged by an additional six months where there is a risk of absconding and one of three vaguely defined changes in circumstances gives rise to a reasonable prospect of removal. However, it is difficult to understand why a reasonable prospect of removal would emerge only after a person has already spent two years in detention. Such lengthy periods of detention are manifestly disproportionate and seriously undermine the fundamental right to liberty.

Finally, the Regulation weakens the safeguards requiring migrants to be detained in specialised detention facilities. This approach is at odds with the standards consistently advocated by the UN Working Group on Arbitrary Detention and the European Committee for the Prevention of Torture.

 

7)    Entry bans

An entry ban is a punitive measure that links return policy with border and visa policy by preventing a person from re-entering the EU through regular channels. The Regulation significantly expands the scope of this measure (Article 10). Under the Directive, an entry ban accompanies a return decision and is mandatory where no period for voluntary departure has been granted or where the person has failed to comply with that period (Article 11). The Regulation introduces the possibility of imposing an entry ban even in the absence of a prior return decision, where a person's irregular stay is detected during exit border checks or where they leave the territory before a return decision has been issued. This new possibility is both disproportionate and highly punitive, as it penalises individuals who are attempting to leave the territory. Moreover, where no formal decision is issued, a person may not even be aware that they are subject to an entry ban and may effectively be deprived of their rights of defence and to an effective remedy. Such an approach sits uneasily with the principles of good administration and legal certainty and creates a significant risk of arbitrary decision-making. The Regulation also doubles the maximum duration of entry bans in ordinary cases, from five to ten years, and allows them to be extended to twenty years where necessary to prevent re-entry. As under the Directive, the duration of an entry ban may nevertheless be reduced, or the ban withdrawn or suspended, in individual cases. In this context, the person's private and family life established in the Member States is a key consideration.

 

8)    Children

The Regulation introduces several safeguards for unaccompanied children, including the appointment of a guardian, the right to be heard during the return procedure and a review of detention every three months (Articles 20 and 33). At the same time, however, it weakens several of the protections currently provided under the Directive. These include removing schooling from the express grounds for extending the period for voluntary departure, reducing the entitlement to education in detention to the provision of "educational activities", and no longer requiring that assistance be provided to unaccompanied children before a return decision is issued. Crucially, almost all of the Regulation's new intrusive measures—including investigative measures and restrictions on freedom of movement (discussed above) —apply equally to children. Only unaccompanied children are exempt from removal to return hubs; families with children can be subject to this possibility. The Regulation's approach to detention is particularly concerning. Since the adoption of the Directive in 2008, international human rights standards have evolved considerably. The UN Committee on the Rights of the Child and the UN Committee on Migrant Workers, the UN Special Rapporteur on the Human Rights of Migrants, and the UN Working Group on Arbitrary Detention have all recognised that children should never be placed in immigration detention. Rather than reflecting this well-established standard, the Regulation substantially expands both the grounds for detention and its maximum duration, while failing to exclude children from its scope. On balance, the Regulation is likely to have a detrimental impact on children's rights.

 

9)    Alternatives to return

The Regulation largely ignores the reality that not every person in an irregular situation can be returned. Most notably, it removes the existing option to grant regular status rather than issue a return decision. Under Article 6(4) of the Directive, Member States may grant an autonomous residence permit on compassionate, humanitarian or other grounds to a person in an irregular situation. In such cases, no return decision is issued, or, where one has already been adopted, it must be withdrawn or suspended for the duration of the residence permit. As a result of this deletion, the Regulation no longer recognises any humanitarian or human rights-based exception to the obligation to issue a return decision for every person in an irregular situation. Granting regular status enables individuals to access socio-economic rights and justice, while reducing their vulnerability to exploitation. It is equally in the interest of Member States to ensure that people residing on their territory have a lawful status. Given that Member States already provide a range of humanitarian and compassionate residence permits, a genuinely common return system should also preserve avenues for regularisation, which are intrinsically linked to return policy.

 

10) Return hubs

One of the Regulation's most significant innovations is the possibility of removing a person to a third country with which they may have no prior connection—a so-called "return hub" (Article 17). This mechanism requires the Member State concerned to conclude an agreement or arrangement with the third country. Notably, that country is not required to satisfy the criteria applicable to safe third countries under the Asylum Procedure Regulation. Instead, the Regulation merely provides that it must respect international human rights standards and principles in accordance with international law, including the principle of non-refoulement. However, it does not specify who is responsible for assessing compliance with these requirements or by which criteria such an assessment should be conducted. Only unaccompanied children are exempt from transfer to return hubs. The concept has attracted interest among some Member States, with Rwanda, Uganda and Uzbekistan reportedly among the countries recently considered as potential locations for return hubs. The Italy–Albania Protocol has undoubtedly served as the model for this mechanism. Yet beyond the serious human rights concerns it raises, the Italian experience has also demonstrated the considerable financial and practical challenges of its implementation. Following several transfers blocked by Italian courts, the compatibility of the arrangement with EU law is yet to be decided by the Court of Justice of the European Union (CJEU) (see here and here). Return hubs have also been considered a form of externalisation of migration governance by the UN Special Rapporteur on the Human Rights of Migrants. The Rapporteur warned that they create a risk of violating the principle of non-refoulement, including chain refoulement, exposing individuals to arbitrary detention and undermining procedural safeguards. As the Rapporteur emphasised, States cannot outsource their human rights obligations and may remain internationally responsible for violations committed in the cooperating third country.

 

Concluding thoughts

During the negotiations on the Return Directive, a Latin American head of state famously described it as the "Directive of Shame" (Directiva de la Vergüenza). From the perspectives of human rights, proportionality, good faith and, indeed, common sense, the future Return Regulation may well deserve to be regarded as the EU's "Regulation of Shame". As the preceding analysis illustrates, the Regulation creates a significant risk of human rights violations, most notably breaches of the principle of non-refoulement—including chain refoulement—and the prohibition of arbitrary detention. It introduces a range of highly intrusive and coercive measures, even though they are part of administrative migration procedures concerning people who have committed no crime. The Regulation also raises serious concerns regarding legal certainty and the prohibition of arbitrariness by deferring to national law on core aspects of the return procedure, including the grounds for detention, the criteria for establishing a risk of absconding, restrictions on freedom of movement, investigative measures and the consequences of non-compliance. In doing so, it undermines one of its own stated objectives: the harmonisation of return rules across the EU. The Regulation is also unlikely to achieve its central policy objective of increasing the number of returns. There is little evidence that reducing opportunities for regularisation while expanding detention and entry bans will make return systems more effective. On the contrary, greater reliance on detention and reduced use of voluntary return are difficult to reconcile with considerations of financial efficiency, itself a guiding principle of EU law-making.

Reaching agreement on such a coercive text was made possible by Parliament's position. Unlike during the negotiations on the Return Directive between 2005 and 2008, the Parliament did not serve as a counterweight to the positions of the Commission and the Council. Whereas interinstitutional negotiations on the relatively short Directive lasted around nine months, agreement on the considerably longer Regulation was reached after only a handful of trilogues over approximately two months. During the negotiations on the Directive, Parliament was instrumental in preserving and strengthening a number of safeguards. By contrast, its position on the Regulation remained largely aligned with the Council's. The alliance between the EPP and far-right groups secured the necessary majority, but support also came from some centrist and liberal MEPs. This reflects a broader shift in the European political landscape, in which restrictive migration narratives have become increasingly mainstream.

With the Regulation now adopted, much will depend on its implementation and interpretation. National courts and the CJEU will have a crucial role in ensuring that its provisions are applied consistently with Member States' obligations under international law, EU law and domestic constitutional standards. Beyond litigation, financial oversight bodies may increasingly scrutinise expenditure on costly detention systems and return hubs. Given that the Commission's proposal was not accompanied by an impact assessment, independent research will be essential to evaluate whether the Regulation's coercive approach actually increases returns. Investigative journalism and advocacy will likewise remain indispensable in documenting its impact and challenging practices that undermine fundamental rights. Perhaps, ultimately, this legislation—shaped by ideas that only a few years ago remained largely confined to the political margins—will also serve as a reminder that the erosion of rights rarely remains limited to a single group. Once exceptions to fundamental guarantees become normalised, the boundaries of exclusion tend to expand, placing ever more people beyond the protection of the law.

What is wrong with the proposal to exclude some Ukrainians from temporary protection?

 

 

Dr. Meltem İneli Ciğer, Associate Professor of International Law, Suleyman Demirel University Faculty of Law, Türkiye; Honorary Fellow, School of Law and Social Justice, University of Liverpool

With comments from Professor Steve Peers, Law School, Royal Holloway University of London

 

Photo credit: President of Ukraine, via Wikimedia Commons

 

 

Nearly every year since I started teaching temporary protection and the Council Directive 2001/55/EC of 20 July 2001 (Temporary Protection Directive) at the Odysseus Summer School in 2022, a familiar pattern has emerged. Each year, while updating my PowerPoint slides, the European Commission adopts a proposal to extend the temporary protection regime implemented for Ukrainians fleeing the full-scale Russian invasion. I usually read and incorporate this new development, either the Commission Proposal or the adopted Council Implementing Decision, when I am flying to Brussels. This year is no exception.

 

This year’s Proposal for a Council Implementing Decision (COM(2026) 345 final) marks a departure from previous practice. Aside from proposing to extend temporary protection for an additional year, namely until 4 March 2028, the Commission is proposing, for the first time, to restrict the scope of temporary protection for a specific subset of newcomers. In particular, Article 2 of the Proposal targets newly arriving Ukrainian citizens who are subject to military service obligations under Ukrainian law and who lack explicit, official authorisation from the Ukrainian authorities to leave the country. By proposing this conditionality, the Commission is effectively linking eligibility for temporary protection to the enforcement of a home state’s conscription laws.

 

I have written here and here why I believe these yearly extensions run contrary to the Temporary Protection Directive itself and the risks they bring. This year, however, I will do something different. Since over the years, I have covered the legal problems with yearly extensions, I want to focus specifically on the legal questions brought by the new proposal, namely, those relating to the new restrictions it introduces.

 

Here, I will pose four main legal questions relating to these new restrictions and give my opinion on them. I should mention that the idea to write this post emerged from an exchange on LinkedIn, where I am a somewhat active user, and the comments I received from Steve Peers. I asked Steve to include his answers to these questions, to provide a ‘devil’s advocate’ perspective on some points. Finally, I should mention the sources that can help this analysis. You can watch the Commission’s official press conference video, where some similar questions were posed to the Commission. Additionally, a recent Council of Europe report explicitly warns about the human rights risks of the proposed restriction of scope. Of course, these legal questions will only arise if the proposal is adopted as it is. What are they?  

Question 1: Is restricting the scope of temporary protection and excluding newly arriving military-age men from Ukraine discriminatory?

Meltem: Yes, there is a very strong legal argument that this specific restriction is discriminatory under both EU and international human rights frameworks. First, let us look at who is excluded: Article 2 of the proposal explicitly targets newly arriving Ukrainian citizens who are subject to military service obligations under Ukrainian law and who lack official authorisation from the Ukrainian authorities to leave the country. Because martial law and mobilisation frameworks in Ukraine predominantly apply to adult males aged 18 to 60, this measure selectively excludes military-age men from receiving temporary protection in the EU in future.

Article 21 of the Charter of Fundamental Rights strictly prohibits any form of discrimination based on sex or nationality. By implementing a rule that disproportionately and systematically strips temporary protection eligibility away from mostly adult men, the proposal introduces a gender-discriminatory measure. Treating newly arriving men less favourably than women fleeing the same conflict zone creates direct friction with this principle of equal treatment. This is further reinforced by Article 14 of the European Convention on Human Rights (ECHR), which prohibits sex-based discrimination when read alongside the protection of fundamental rights under Article 3 or Article 8 ECHR (cf para 30 here). Of course, although these excluded individuals will retain their absolute right to apply for asylum under Article 18 of the Charter, this route opens up further complex legal questions. Most notably, what happens if their international protection claim is rejected?

If a Member State examines an individual’s asylum (ie international protection) claim (which can still be made, according to the temporary protection Directive, even if temporary protection is refused), and concludes that evading conscription under these specific circumstances does not meet the high threshold for refugee status or subsidiary protection, the individual is left in a dangerous legal vacuum. Because they are barred from registering as temporary protection beneficiaries by this new proposal, this may expose them to the immediate risk of a return decision. 

Steve: A devil’s advocate view: the Charter also provides for possible restrictions of Charter rights in its Article 52, which allows limitations on rights to support ‘objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others’. The argument here is that the EU is seeking to support the Ukrainian defence effort, which could be described either as an objective of general interest, or protection of the rights and freedoms of others. The measure is arguably proportionate as long as the return of each Ukrainian citizen in the individual case would not amount to non-refoulement (and only provided that any application for international protection they have made has failed on the merits; the concerns raised about human rights and conscription in Ukraine can obviously be argued in this context). Having said that, the Commission’s proposal can fairly be criticised for failure to make any specific reference to the possibility of applying for international protection instead.

Question 2: Does the Temporary Protection Directive give the Council the power to restrict its scope after four years of its activation?

Meltem: No, it does not. Neither Article 5 nor any other provision in the temporary protection Directive (TPD) grants any power to the Council to retroactively alter, narrow, or restrict the objective scope of who qualifies for that protection via a yearly implementing decision. Article 5 is invoked by the Commission in the Proposal to justify restricting the scope of the TPD’s application. However, if you look closely at the TPD, you will see Article 5 is intended to designate the specific categories of persons eligible for temporary protection at the very beginning, when there is a mass influx. It does not give the Council the power to dynamically designate or exclude different groups in subsequent yearly extensions. In my opinion, attempting to introduce new restrictions now is completely contrary to the TPD provisions. These new restrictions essentially introduce new exclusion grounds for temporary protection status. When looking at Article 28 of the Directive, which explicitly sets out the allowed exclusion grounds, it is clear that the new restrictions are also not permitted as additional exclusion grounds.

Steve: Again, a devil’s advocate might argue the opposite here – that this is not an issue of a new exclusion from temporary protection (which would definitely need an amendment to the parent Directive to be created), but rather a narrowing of those included by temporary protection. The scope of people included by the current iteration of temporary protection is defined not by the parent Directive, but by the 2022 decision to trigger it in response to the main Russian invasion of Ukraine, which has been amended (to extend its duration) several times already. The parent Directive is silent on the issue of whether the scope of who is covered by temporary protection can be altered (either to narrow it or to widen it) after temporary protection is triggered, but perhaps the earlier CJEU judgment in Kaduna – which accepted that Member States could narrow the scope of any ‘optional’ temporary protection they initially offered on top of the EU minimum if they chose – applies by analogy to EU-wide temporary protection, ie the EU can narrow the scope of temporary protection it initially offered, as long as the parent Directive’s test for terminating temporary protection is met for the specific group of people being removed from the scope of that protection as regards future applications. That test is:

...the situation in the country of origin is such as to permit the safe and durable return of those granted temporary protection with due respect for human rights and fundamental freedoms and Member States' obligations regarding non-refoulement.

It might, of course, be argued that this test is not met for men of military age. In any event, the parent Directive’s guarantee that they can apply for international protection at any time, and the Return Directive’s guarantee that they cannot be refouled, have to be satisfied too, on an individual basis.

It might also be argued that since the parent Directive only sets minimum standards, it must remain open to Member States to grant temporary protection to military age men as an option, as long as they are fleeing Ukraine for the same reason as others seeking temporary protection (see the Kaduna judgment by analogy, as regards those who left Ukraine shortly before the main Russian invasion). This might be relevant in particular to Hungary, which has reportedly objected to this aspect of the proposal.

Question 3: What will happen to the family members of those who fall within the scope of temporary protection in line with Council Implementing Decision (EU) 2022/382 of 4 March 2022?  

Meltem: This raises a very messy legal question regarding family unity. Under the initial Council Implementing Decision (EU) 2022/382, family members of Ukrainian nationals, as well as those of third-country nationals holding refugee or equivalent protection status in Ukraine prior to the full-scale invasion, are explicitly included as a core category entitled to temporary protection alongside the principal applicant.  Article 15 of the Temporary Protection Directive sets out mandatory duties for Member States to reunite family members who were separated due to the circumstances of the mass influx. (cf. Milios’s contribution here) The new proposal creates a direct clash between Article 15 of the TPD and the proposed exclusion grounds. If a newly arriving, military-age man leaves Ukraine to join family members who have held temporary protection in the EU since 2022, his exclusion would directly undermine the right to family life and the obligations in the 2022 Decision and the Directive. Conversely, admitting him while excluding single men in identical circumstances introduces severe issues of differential treatment and discrimination.

Steve: here I think the devil’s advocate has no good argument to make. Family members of those with temporary protection are entitled to temporary protection, according to the 2022 Decision, and family reunion, according to the parent Directive, unless the criteria for exclusion set out in that Directive (ie security risks and serious crimes, defined similarly to the exclusion clauses in the Refugee Convention) apply. This route to temporary protection is most likely to be relevant to men whose wives or partners have temporary protection in the EU (for partners, this is subject to the criteria of having a ‘stable relationship’, and that the host Member State treats partners in a ‘comparable’ way to married couples). As Jane Austen might have said, “It is a truth universally acknowledged, that a single man seeking temporary protection from a Russian platoon, must be in want of a wife.”

Question 4: Is Recital 5 of the Proposal a mistake or a new interpretation of the Krasiliva case (C-753/23) by the Commission?

In the Krasiliva case (C-753/23), the Court of Justice of the European Union (CJEU) confirmed that displaced persons from Ukraine have a right to choose the Member State where they want to apply for temporary protection. However, the Court ruled that national authorities cannot declare a newcomer’s temporary protection registration and resident permit request inadmissible simply because they already applied for a permit in another Member State but have not received it. Interestingly, the Court left open the question whether a person who has received temporary protection status and a resident permit attached to this status in one Member State can apply and be granted temporary protection in another MS.

Recital 5 of the Commission Proposal notes “Given that a person can benefit from the rights attached to temporary protection in only one Member State at a time, to ensure that this is the case, and to avoid multiple registrations for temporary protection, Member States should reject residence permit requests made on the basis of Article 8(1) of Directive 2001/55/EC when it is apparent that the person concerned has already obtained a residence permit on that basis in another Member State and therefore is enjoying the rights attached to temporary protection therein, including social assistance. This would be coherent with the judgment of the Court of Justice of the European Union in case C-753/23 and in particular paragraph 30 thereof.”

Steve: To my mind, the Krasiliva judgment is ambiguous. The key para in the judgment says that it is “open to the authorities of a Member State to verify, in the course of examining” a temporary protection application, “whether those persons have already obtained a residence permit in another Member State”. This is not explicitly definitive either way. The important point here is the addition of the words in the Commission proposal: “and therefore is enjoying the rights attached to temporary protection therein, including social assistance”, which do not appear in the previous Council decision extending temporary protection. This suggests that if another Member State has granted temporary protection but has not done so correctly, ie does not extend the substantive rights set out in the parent Directive to beneficiaries in practice, another Member State is obliged to consider a temporary protection application from those persons. This would be consistent with CJEU case law on international protection (Ibrahim).

Meltem: I believe the Commission adopts a very restrictive reading of the Judgment by noting Member States should reject residence permit requests made on the basis of Article 8(1) of the Directive when it is apparent that the person concerned has already obtained a residence permit in another MS. However, as Steve pointed out, what happens if a person holds TP status in a Member State but is not enjoying the rights attached to temporary protection therein, including social assistance? Then can they apply for temporary protection in another Member State? I think the recital somehow supports this reading. Is this on purpose or a mistake we do not know.

Conclusion

In conclusion, although the Commission's proposal to restrict the scope of temporary protection to help Ukrainian allies is understandable from a policy point of view, it raises many serious legal problems. For the reasons I have outlined, ranging from discrimination and ultra vires overreach to the risk of creating a dangerous legal gap for those whose asylum claims might be rejected, I argue that the Commission proposal should not be adopted as it is.

Double Direct Effect? The UK Supreme Court’s revisiting of the direct effect conditions in Dillon

 

 

Dr Eleni Frantziou, Associate Professor in Public Law and Human Rights, Durham Law School, and Dr Sylvia de Mars, Reader in Transnational Public Law, Newcastle Law School

 

Photo credit: Samuel Lennox, via Wikimedia Commons

 

Introduction

 

Is there anything left to say on the direct effect of EU law? Yes, according to the UK Supreme Court, which handed down its much-awaited judgment in Dillon et al on 7 May 2026. The UK reference above is not a typo: despite Brexit, aspects of the EU/UK Withdrawal Agreement (‘WA’) have direct effect under the conditions provided for in EU law, in line with Article 4 WA. In Dillon, the UK Supreme Court was asked to interpret whether one provision of this agreement – Article 2(1) of the Ireland/NI Protocol (‘Protocol’), which is itself a core part of the WA (Article 182 WA) – is directly effective and, if so, on what terms.

 

The case concerned the Legacy (Troubles and Reconciliation) Act 2023, which set out a broad range of immunities for serious crimes committed in Northern Ireland during the Troubles. The principal claimants were one direct victim and three relatives of victims killed in the conflict – a wife, mother and sister who, as O’Donoghue observes, were but minimally acknowledged by the UKSC. They challenged the immunities provisions of the Act under the ECHR and EU law.

 

In this post, we focus only on the EU law dimensions of the case and, particularly, on the question of direct effect. In our view, Dillon raises significant questions about the correct application of the direct effect conditions, the ultimate arbiter of which is the CJEU. In particular, we argue that the UKSC’s interpretation of direct effect in Dillon is inconsistent with EU law, because it creates an unprecedented requirement of ‘double direct effect’: it applies the direct effect conditions to both a provision of the Withdrawal Agreement/Protocol and to measures referenced in this provision.

 

Why was EU law still relevant in Dillon in 2026?

 

One of the most contentious aspects of the Withdrawal Agreement negotiations was the status of Northern Ireland. It is widely documented that EU membership was one of the principal catalysts for the Belfast/Good Friday Agreement (‘BGFA’) that officially marked the end of the Northern Ireland conflict known as ‘the Troubles’. As EU membership by both the UK and Ireland had ensured free movement between the Irish north and south, the creation of special arrangements that secured this after Brexit was a crucial aspect of the UK’s exit negotiations.

 

These special arrangements were embedded into the Ireland/NI Protocol (as of 2023 also known as the ‘Windsor Framework’ in the UK), which was appended to the Withdrawal Agreement as a core part of it dealing with a specific ‘withdrawal’ issue.  The Protocol provides for continued north/south cooperation, avoiding a hard border and protecting both trade and cross-border work. Importantly for the purposes of the Dillon case, the Protocol also notes in recital 7 of its Preamble that ‘Union law has provided a supporting framework for the provisions on Rights, Safeguards and Equality of Opportunity of the 1998 Agreement’ (‘RSEO’) and includes a specific non-regression guarantee with respect to this part of the BGFA. To this end, Article 2(1) of the Protocol provides:

 

The United Kingdom shall ensure that no diminution of rights, safeguards or equality of opportunity, as set out in that part of the Belfast/Good Friday Agreement entitled Rights, Safeguards and Equality of Opportunity results from its withdrawal from the Union, including in the area of protection against discrimination, as enshrined in the provisions of Union law listed in Annex 1 to this Protocol, and shall implement this paragraph through dedicated mechanisms.

 

It was this article of the Protocol that formed the basis of the EU law claim in Dillon. The claimants’ argument went as follows: since the UK had been subject to the Victims’ Rights Directive (‘VRD’) before Brexit and this had been implemented in NI through domestic measures, the immunities created by the Legacy Act reduced the level of protection of fundamental rights available during the UK’s membership of the EU, and were therefore in conflict with Article 2 of the NI Protocol. This claim was made possible by Article 4(1) WA, which states that the “Agreement shall produce in respect of and in the United Kingdom the same legal effects as those which they produce within the Union and its Member States” and the test for individuals to rely on a provision of the Withdrawal Agreement before domestic courts is that such a provision should “meet the conditions for direct effect under Union law.”

 

In line with the widely known Van Gend en Loos formula, a provision of EU law has direct effect if it confers rights to individuals that are clear, precise, and unconditional, rather than being subject to the adoption of further measures by either Member States or the EU.  The wording of Article 2(1) of the Protocol prima facie meets these conditions with ease. The right conferred by Article 2(1) is to not have ‘rights, safeguards or equality of opportunity’ as set out in the BGFA and in Annex 1 of the Protocol diminished. This paragraph contains a ‘textbook’ negative obligation. It requires no further measures at all – the UK simply needs to refrain from introducing new measures that reduce the level of protection of EU fundamental rights as it stood on 31 December 2020.

 

The claimants consequently argued that, since Article 4 WA also provides for the Agreement to have primacy and, at paragraph 2, requires that domestic courts be capable of disapplying incompatible provisions, the immunity provisions of the Legacy Act had to be disapplied. Two courts in Northern Ireland had found for the claimants, disapplying the offending provisions – but the government challenged this on appeal to the UKSC. It argued that if Article 2 was to have direct effect, it could only do so by reference to obligations that were themselves clear, precise and unconditional.

 

The Supreme Court sided with the government. It found that Article 2 could not always have direct effect, but only under certain circumstances, namely when the measures cross-referenced in Article 2 were themselves directly effective.  It is worth setting out its reasoning in some detail.

 

The UKSC commences, at paragraph 112, by citing the so-called Demirel test.  Demirel is one of the early cases in which the CJEU considered whether provisions in bilateral agreements signed by the EU could have direct effect; and it found at paragraph 14 that:

 

…a provision in an agreement concluded by the European Union with a non-member country must be regarded as being directly applicable when, regard being had to its wording and to the purpose and nature of the agreement, the provision contains a clear and precise obligation which is not subject, in

its implementation or effects, to the adoption of any subsequent measure... (emphasis added)

 

So far, so good.  While, as we discuss further below, the treatment of the Withdrawal Agreement (or Protocol) as part of ordinary EU external relations law is questionable, this does reflect the commonly used test for evaluating the direct effect of bilateral agreements involving the EU.

 

However, the UKSC proceeds with the following statement in paragraph 113:

 

The obligation imposed on the United Kingdom by article 2(1) of the Windsor

Framework relates to rights, safeguards or equality of opportunity “as set out in” the RSEO chapter. It is therefore necessary to consider whether, having regard to the wording and to the purpose and nature of the RSEO chapter and of article 2(1) of the Windsor Framework, those provisions read together impose a clear and precise obligation which satisfies the test for direct effect.

 

In our view, the words “therefore necessary” make a huge argumentative leap, hitherto unseen in any EU law treatment of direct effect. In this single short paragraph, the CJEU takes the Demirel test but applies it simultaneously to the Withdrawal Agreement and its provisions and the BGFA’s RSEO chapter’s provisions. In other words, the UKSC reasons that Article 2 of the Protocol cannot have direct effect as such: for it to be directly effective, anything it references must also be directly effective.  This leads to its even more confounding finding, which is – ultimately – that Article 2 of the Protocol sometimes has direct effect – but at other times it does not. This is because, according to the UKSC, it is impossible to identify a clear and precise obligation without reference to the RSEO chapter. As the UKSC puts it at paragraph 116, “[i]t is only in this way that the obligation not to diminish rights, safeguards or equality of opportunity acquires any content.”

 

This aspect of the ruling – which we dub ‘double direct effect’ –presents a deep challenge to settled understandings of the direct effect of EU law.

 

The fallacy of the UKSC’s direct effect

 

The UKSC’s ruling does not question the possibility of Article 2 of the Protocol to have direct effect, nor does it challenge the terms of direct effect. According to the Court, as per paragraph 112, the relevant conditions are the conditions set out in EU law. But the choice of EU law is already telling of the ruling’s direction and tone: rather than going straight for the Van Gend en Loos conditions, the Court refers to the Demirel test on the direct effect of international agreements.

 

While this choice is defensible to a degree as the WA is, after all, a bilateral agreement, the confidence with which the UKSC resorts to it is puzzling. Unlike association agreements, such as the one between the EU and Turkey at stake in Demirel, or even the UK/EU Trade and Cooperation Agreement, EU competence for which resides in external relations law (Article 217 TFEU), the Withdrawal Agreement is a very specific type of agreement. The competence to conclude it is found in the constitutional part of the Treaty on European Union – Article 50 TEU – and it is Article 50 (2) that sets out that the terms of withdrawal are to be negotiated in accordance with Article 218(3) TFEU. The Withdrawal Agreement is thus a category in its own right: it is not about a third state negotiating the terms of its association with the EU, however deep, but about a Member State negotiating its departure from the bloc in line with its own constitutional requirements, as set out in Article 50 TEU.  The exceptionality of the Withdrawal Agreement has been raised indirectly in litigation before the CJEU and, albeit that the Court has not had specific occasion to address what this means for direct effect, it has emphasised the significance of Article 50 TEU as the essential legal context for analysing the provisions of the Withdrawal Agreement (see, e.g., Préfet du Gers I, para 54). 

 

But even if we were to accept that the Withdrawal Agreement should be treated just like any other bilateral treaty, its own terms make its ‘intention’ clear, given the express wording of Article 4 WA on the application of the direct effect conditions – a very unusual stipulation that, to our mind, would not go unnoticed by the CJEU. In fact, as Gallo and Labus note, specific exclusions of direct effect are the norm in the external relations context, as is indeed the case for the TCA, Article 5 of which preclude direct reliance by individuals on its provisions. The choice of the Demirel conditions is, therefore, significant for at least two reasons: first, it is important symbolically. The UKSC makes a choice to treat the Withdrawal Agreement as one of many international agreements the UK has signed. This automatically limits any perceived onus on its part to read the ‘purpose and nature’ of the Withdrawal Agreement or the Protocol as resulting in different obligations than other international law. Second, the reliance on the Demirel test and its focus on not only the precision and unconditionality of the relevant provisions, but also the ‘purpose and nature’ of the agreement, enables the UKSC’s further findings about Article 2(1) WA. For, as already highlighted above, rather than treating ‘purpose and nature’ as pertaining to the Withdrawal Agreement and its provisions, the UKSC understands this test as applying to the RSEO section of the BGFA.

 

The ‘purpose and nature’ of the BGFA is summarised in paragraph 119 as “establishing peace in Northern Ireland after decades of sectarianism and civil conflict”. This reference appears to preclude a reading of the BGFA as aiming to secure cross-community equality in a broader sense, which makes reliance on Article 2 for the purposes of ensuring the non-diminution of EU fundamental rights altogether less likely. It will be far more difficult to link provisions in the RSEO chapter to EU law if it is essential to prove that their purpose and nature was ‘establishing peace’. This focus on the Demirel condition of the nature and purpose of the agreement thus appears to negate, at least to an extent, the practical relevance of Article 2 as a non-regression clause. Rather than protecting the ‘supporting framework’ of fundamental rights that membership of the EU meant for the peace process in tune with the Protocol’s Preamble, the interpretation could prove to be much narrower– a possibility that remains to be fleshed out further in subsequent case law.

 

Beyond the type of direct effect it chooses, though, the UKSC also commits, in our view, a fundamental, substantive error of EU law in its application of the direct effect conditions. This error rests on the finding that Article 2(1) is a provision that could sometimes, but not always, have direct effect – depending on what else it references. This position does not withstand scrutiny from the perspective of EU law. 

 

It is trite EU law, including under Demirel, that the direct effect conditions refer to ‘a provision’. Leaving the categorical exclusion of certain forms of direct effect for certain instruments (eg, the horizontal direct effect of directives), the CJEU has never held that a provision can both have and lack direct effect. The test is a clear binary: the provision either meets the conditions and it is directly effective or it does not, and it is not.

 

In this sense, it may have been more coherent for the UKSC to state that Article 2 is not directly effective at all. That, however, would have created the problem that some of the EU law explicitly referred to in the provision (the Equality directives) are par excellence directly effective obligations. Finding that Article 2(1) lacks direct effect altogether would have created a procedurally awkward situation, whereby the Annex to the Protocol has direct effect and supremacy in accordance with Article 4(1) WA, but its ‘activating’ provision does not. It was also clear that the provision was thought to have direct effect when negotiated and the UK government did not challenge the right of individuals to invoke it with respect to the annexed Directives; while the UKSC made it clear that UK government interpretations of its own commitments made when concluding the WA were of no help in determining of Art 2 of the Protocol was directly effective (see paragraphs 123-124 of the judgment), it seems to have wanted to avoid making the existence of that Annex 1 and, indeed, Article 2 itself wholly pointless from a litigation perspective. Hence, the UKSC resorts to a half-way house: if the provisions against which non-diminution is sought are themselves directly effective, then Article 2 can be invoked before domestic courts. If they are not, it cannot. Much like Schrödinger’s cat, then, direct effect is simultaneously alive and dead – it all depends on what Article 2 is referencing. 

 

This reasoning in our view misunderstands (though it does not reference) CJEU case law on the direct effect of provisions that also refer to other provisions, as well as the nature of the direct effect conditions as interpreted in EU law, more generally. For example, Charter provisions regularly give ‘specific expression’ to non-directly effective measures of directives (see, eg, the Grand Chamber rulings in Egenberger, Braathens,  KL v X). Unlike the approach espoused by the UKSC, it is not the non-directly effective measures detailing the core obligation that suddenly acquire direct effect. Rather, the presence of a directly effective measure, such as Art 47 CFR, makes the more specific obligations listed in the directives invocable in court, where they otherwise would not be. The core obligation is directly effective regardless of what it cross-references. The CJEU makes this very clear in Egenberger:

 

78. [L]ike Article 21 of the Charter, Article 47 of the Charter on the right to effective judicial protection is sufficient in itself and does not need to be made more specific by provisions of EU or national law to confer on individuals a right which they may rely on as such [emphasis added].

 

In other words: it is the more general provision of primary law – Article 47 of the Charter – that gives rise to a clear, precise and unconditional obligation. This does not require a cross-reference to a separate provision that is also directly effective in order to be relied upon. Rather, the only effect of the directives in the above cases is to show that the scope of EU law – and hence the relevant provision of the Charter – was engaged.

 

We found similar reasoning in CJEU judgments that involve international agreements, where the cross-referencing to Annexes and Protocols is very common. In Sevince, for instance, concerning the EEC-Turkey Association Agreement, the CJEU found in paragraph 22 that provisions in several decisions adopted under this association agreement had direct effect – and that this

 

cannot be affected by the fact that [other provisions] provide that the procedures for applying the rights conferred onto Turkish workers are to be established under national rules. Those provisions merely clarify the obligation of the Member States to take such administrative measures as may be necessary for the implementation of those provisions, without empowering the Member States to make conditional or restrict the application of the precise and unconditional right which the decisions of the Council of Association grant to Turkish workers. (emphasis added) 

 

The analogy is, in our view, powerful: similarly to Article 2, this case concerned a standstill obligation that no further obstacles to the free movement of workers be imposed. Moreover, like Article 2, there was an expectation that national procedures would be introduced to ensure the effectiveness of this core obligation. The CJEU clearly distinguished this procedural conditionality from the primary negative duty. 

 

The idea that the ‘referred-to’ provisions do not themselves have to be directly effective for a primary provision to be directly effective is also expressly confirmed in the 2022 ruling in Deutsche Umwelthilfe, which concerned standing requirements in the implementation of the Aarhus Convention. The CJEU’s reasoning is worth citing in some detail:

 

66. [W]hile it is true that Article 9(3) of the Aarhus Convention does not have direct effect in EU law and cannot, therefore, be relied on, as such, in a dispute falling within the scope of EU law, in order to disapply a provision of national law which is contrary to it, the fact remains that, first, the primacy of international agreements concluded by the European Union requires that national law be interpreted, to the fullest extent possible, in accordance with the requirements of those agreements and, secondly, that Article 9(3) of the Aarhus Convention, read in conjunction with Article 47 of the Charter, imposes on Member States an obligation to ensure effective judicial protection of the rights conferred by EU law, in particular the provisions of environmental law...

          …

78. … the discretion conferred on the Member States to lay down rules governing the right to bring proceedings, referred to in [Article 9(3) of the Aarhus Convention], does not affect their obligation to ensure a right to an effective remedy enshrined in Article 47 of the Charter, as, moreover, also alluded to in Article 9(4) of the Aarhus Convention. Article 47 of the Charter is sufficient in itself and does not need to be made more specific by provisions of EU or national law in order to confer on individuals a right which they may rely on as such … Thus, that article may be relied on as a limit on the discretion left to the Member States under Article 9(3) of the Aarhus Convention.

 

This case is also analogous to what the UKSC had to consider in Dillon: a primary provision that set out a clear, precise and unconditional right (Article 47 of the Charter) – and further provisions, covering more specific situations in which such a right might apply, which are not directly effective (in Article 9(3) of the Aarhus Convention).  The CJEU had every opportunity to set out that both Article 9(3) of the Aarhus Convention and Article 47 of the Charter had to be directly effective, but did not do so – instead, it stressed that Article 47 sets out framework conditions for how a conditional, imprecise referred provision had to function.  This is in our view similar to the function that Article 2 of the Protocol carries out: it sets out the conditions that apply once the RSEO and Annex 1 directives need to be considered, in the form of setting a non-diminution test.

 

Finally, the UKSC’s understanding of the core negative obligation in Article 2 as vacuous without a contemporaneous assessment of the RSEO sets too high a threshold for clarity and precision. If this was how its reasoning worked, the CJEU would have denied the direct effect of most provisions of EU primary law. To take one iconic example, it clearly would have declined to accept the direct effect of Article 157 TFEU in Defrenne back in 1976; as Daniele Gallo puts it, “[t]he contents of the obligation of [what is now Article 157 TFEU] were considered sufficiently clear, to the extent that the Member States must ensure ‘the application of the principle that men and women should receive equal pay for equal work’, despite … that there was, at the time, relative uncertainty about the concept of ‘equal work’ as well as that of ‘work of equal value’.  (Gallo, OUP 2025, 83).

 

To summarise, the RSEO determines the scope of Article 2 and it is squarely for the Supreme Court to interpret what this means. As noted above, there may be disagreement about how narrowly the ambit of the RSEO was drawn in this ruling – disagreement which can be further discussed in the Specialised Committee on the Windsor Framework. Such disagreement, however, would concern the substantive question of diminution (i.e., was there a relevant RSEO right that has now been diminished?) – and not the relevant test for direct effect. As a matter of the direct effect conditions, there can be little doubt, based on CJEU authority on direct effect, that Article 2 can be invoked before domestic court. In turn, if disagreement arises about the direct effect conditions, the correct interpretation must be determined by the CJEU – a point to which we now turn, in concluding.

 

Is this the final word on the direct effect of Article 2 NIP?

 

Assuming that our analysis is correct, and that the application of the direct effect conditions in Dillon is inaccurate, can anything be done about it? The UKSC was not entitled to make a reference to the CJEU on the matter of direct effect, as this is not provided for under this part of the Protocol. While references are possible with regard to a limited number of other provisions, primarily relating to trade, they are not provided for in the context of the non-diminution guarantee. It is to be hoped, however, that the Joint Committee overseeing the WA will discuss these issues in its upcoming meeting, particularly given the significance of the direct effect question for ongoing litigation on Article 2 at lower levels and, more generally, for the very ability of the Dedicated Mechanism set up under the Protocol to contribute to the enforcement of the non-diminution guarantee through litigation.

 

Arguably, regardless of the outcome of the political discussion, a question should now be put to the CJEU about the correct application of the direct effect criteria by agreement of the parties. The Dillon case demonstrates the technical difficulties associated with ongoing Brexit litigation that involves EU law concepts without the possibility of interpretive clarity through the preliminary reference structure, and it is in nobody’s interest for different versions of a 60 year old test to apply in the EU itself and its closest trading partner. Ultimately, though, if no agreement is reached about what the correct interpretation of the direct effect conditions is in the context of Article 2 within the Joint Committee, an arbitration panel may be appointed to determine the issue. Its decision will be binding on both parties. Crucially, the arbitration panel would be required to make a reference to the CJEU to determine any issues of EU law before it reaches its decision. Undoubtedly, the concept of direct effect would be such an issue.