The CJEU Gets Brexit Done: New Judgment on Extradition from Ireland to the UK after Brexit

 

 

Professor Steve Peers, University of Essex

 

The CJEU this week delivered its first judgment on the impact of Brexit (as far as the EU side is concerned) since the UK has left the EU – swiftly following last week’s Advocate General’s opinion (which I discussed here; I’ve adapted some of that blog post in this one) in response to fast tracked questions referred from the Irish Supreme Court (on appeal from the Irish High Court’s judgment).

 

Background

The Court’s judgment concerns extradition from Ireland to the UK under both the withdrawal agreement and the EU/UK Trade and Cooperation Agreement (TCA). The former treaty provides that the internal EU legal framework for simplified extradition – the European Arrest Warrant (EAW) law – still applied between the UK and EU during the transition period set out in that agreement, which lasted from 1 February 2020 to the end of that year. (As an exception, three Member States refused to hand over their own citizens, but Ireland was not one of them). 

After that point, the separation provisions of the withdrawal agreement applied: the EAW law still applies if a fugitive was arrested on the basis of that law before the end of the transition period. If the EAW was issued before that date, but the fugitive was not arrested in time on the basis of the EAW law, the subsequent TCA provides that its extradition rules – which are similar, but not identical, to the EAW law – apply. (The TCA rules also apply to extradition requests first sent after the transition period ended, and the judgment in this case is also relevant by analogy to those requests too).  

The case is about two fugitives arrested in Ireland on the basis of British EAWs, who challenged their extradition to the UK. Both EAWs were issued during the transition period, but one EAW led to an arrest before the end of that period, hence the separation provisions kicked in, and the EAW law applies fully to the case. In the other case, the arrest took place after the end of this period, and so the TCA rules apply. The fugitive in the former case was already convicted and sentenced to eight years in prison, whereas the fugitive in the latter case was subject to a pending prosecution for fourteen alleged criminal offences.

Both two fugitives argued that they could not be subject to these rules in the two treaties, because even though Ireland agreed to both treaties in the EU Council, that country did not exercise a formal opt in as set out in the Justice and Home Affairs protocol relating to Ireland (and previously also applying to the UK) attached to the EU Treaties. If they had been successful, their challenge would have complicated not only extradition but other forms of criminal law cooperation between Ireland and the UK set out in the withdrawal agreement and TCA, in both directions (ie Irish requests to the UK too). It could also have impacted on criminal law cooperation between the UK and Denmark, which has a similar (but not identical) opt in protocol. (Criminal law cooperation would not entirely have ended, however, because there are other international treaties that would have applied as a default, although they do not simplify cooperation as much as the treaties with the EU do).

Judgment of the Court

The judgment first examines the scope of Article 50 TEU, noting that it has the twin objectives of ‘first, enshrining the sovereign right of a Member State to withdraw from the European Union and, secondly, establishing a procedure to enable such a withdrawal to take place in an orderly fashion’ (referring to the Wightman judgment, discussed here). The Court continued:

50      It is in order to be able to attain that objective effectively that Article 50(2) TEU confers on the European Union alone competence to negotiate and conclude an agreement laying down the detailed rules for withdrawal, since that agreement is intended to regulate, in all the areas covered by the Treaties, all questions relating to the separation between the European Union and the State withdrawing from it.

51      It was therefore pursuant to that competence that the European Union was able to negotiate and conclude the Withdrawal Agreement, which provides, inter alia, in relations with the United Kingdom, for the continued application of a significant part of the EU acquis, in order to reduce uncertainty and, to the extent possible, minimise disruption caused by the fact that, on the date of withdrawal, the Treaties cease to apply to the departing State, as is apparent from point 4 of the guidelines adopted by the European Council at its special meeting of 29 April 2017 following the United Kingdom’s notification under Article 50 TEU.

The Court also noted that there may be a contradiction between the procedure for the EU Council to conclude an international treaty in other circumstances – which may entail a unanimous vote – and a withdrawal agreement, where Article 50 TEU provides for a qualified majority vote. In the Court’s view, it followed that:

54      Since the withdrawal agreement is intended to cover all of the fields and issues referred to in paragraph 50 above, and since it is not possible to add to Article 50(2) TEU legal bases laying down procedures which are incompatible with the procedure laid down in paragraphs 2 and 4 of that article (see, to that effect, judgment of 2 September 2021, Commission v Council (Agreement with Armenia), C‑180/20, EU:C:2021:658, paragraph 34 and the case-law cited), it must be concluded that only Article 50 TEU, as an autonomous legal basis independent of any other legal basis set out in the treaties, can ensure that all of the fields falling within the scope of those treaties are treated consistently in the Withdrawal Agreement, thus enabling the withdrawal to take place in an orderly manner.

Furthermore, there would be ‘uncertainty’ because Ireland, having agreed to participate in the EAW system with the UK, ‘would be treated as if it had never participated in it’. This outcome ‘would be difficult to reconcile with the objective of reducing uncertainty and limiting disruption so as to enable an orderly withdrawal’.

As for the TCA, which was concluded on the basis of Article 217 TFEU (the power for the EU to conclude association agreements), the Court recalled its case law that Article 217 ‘empowers the European Union to guarantee commitments towards third countries in all the fields covered by the TFEU’. It followed that:

58      Agreements concluded on the basis of that provision may therefore contain rules concerning all the fields falling within the competence of the European Union. Given that, under Article 4(2)(j) TFEU, the European Union has shared competence as regards Title V of Part Three of the TFEU [ie EU competence as regards justice and home affairs], measures falling within that area of competence may be included in an association agreement based on Article 217 TFEU, such as the TCA.

Did the inclusion of extradition issues within the TCA require an additional legal basis relating to criminal law cooperation, besides that of an association agreement? While the case law states that the competence over association agreements can be used ‘only on condition that that measure relates to a specific area of EU competence and is also founded on the legal basis corresponding to that area’, that case law ‘concerned not the conclusion of an association agreement but the adoption of a decision on the position to be taken, on behalf of the European Union, within a body set up by such an agreement’; in such circumstances, where a decision could be adopted ‘by qualified majority without the participation of the European Parliament… the addition of a specific legal basis was necessary in order to ensure that any more stringent procedural requirements specific to the area concerned would not be circumvented’. This is distinct from an association agreement as such:

62      By contrast, since the conclusion of an agreement such as the TCA does not relate to a single specific area of action but, on the contrary, a wide range of areas of EU competence with a view to achieving an Association between the European Union and a third State, and the conclusion of such an agreement requires, in any event – in accordance with point (a)(i) of the second subparagraph of Article 218(6) TFEU and the first sentence of the second subparagraph of Article 218(8) TFEU – a unanimous vote and the consent of the European Parliament, there is no risk, as regards the conclusion of such an agreement, of more stringent procedural requirements being circumvented.

Nor did the prior case law on using multiple legal bases where a measure pursues multiple objectives apply, in the Court’s view. The Court recalled its case law taking a broad view of the scope of the EU’s development policy powers, and extended that approach to cover association agreements:

65      Those considerations also apply mutatis mutandis to association agreements whose objectives are designed in a broad manner, in the sense that the measures required in order to pursue those objectives concern a wide range of areas of EU competence.

66      That is precisely the case with regard to the TCA, since, as the Council submitted in its observations, in order to ensure an appropriate balance of rights and obligations between the parties to the agreement and to secure the unity of the 27 Member States, that agreement had to have a sufficiently wide scope.

67      Accordingly, in view of the wide scope of the TCA, the context of its adoption and the unequivocal declarations made by all the institutions and Member States involved throughout the negotiations on the withdrawal of the United Kingdom from the European Union, the inclusion in that agreement, alongside rules and measures falling within many other areas of EU law, of provisions falling within Title V of Part Three of the TFEU forms part of the general objective of that agreement, which is to establish the basis for a broad relationship between the Parties, within an area of prosperity and good neighbourliness characterised by close and peaceful relations based on cooperation, respectful of the Parties’ autonomy and sovereignty.

68      The surrender mechanism established by the TCA contributes to the pursuit of that objective, the Parties having indicated, in recital 23 thereof, that their cooperation relating to, inter alia, the investigation, detection and prosecution of criminal offences and the execution of criminal penalties would enable the security of the United Kingdom and the European Union to be strengthened. It follows that the TCA cannot be regarded as pursuing a number of objectives or as having several components, within the meaning of the case-law referred to in paragraph 63 above.

 

Comments

First of all, the Court’s approach to the scope of Article 50 is a logical application of its prior ruling that the purpose of Article 50 is partly to provide for an ‘orderly withdrawal’, as the Treaties cease to apply to the withdrawing State (note that the cessation of the Treaties to that country is not just an assertion in European Council guidelines, as the Court seems to imply, but is set out in Article 50 itself). This logically entails that the withdrawal agreement has a broad scope, covering ‘all the areas covered by the Treaties’ – because the withdrawal may raise issues as regards ending membership in any of those areas. The judgment implicitly confirms competence to conclude the transition period (‘the continued application of a significant part of the EU acquis’), also referring to ‘all questions relating to the separation’, in the context of ‘reduc[ing] uncertainty and, to the extent possible, minimis[ing] disruption’ (emphasis added). 

Although there is no reference to the potentially permanent system set up by the Northern Ireland protocol – which goes beyond purely transitional or ‘winding up’ rules – the Court’s judgment does point toward that direction, notably the reference to applying some EU law and to ‘all questions’ concerning withdrawal.

Secondly, as for association agreements such as the TCA, the judgment builds upon prior case law, and reflects the requirement for unanimity of Member States in the Council to conclude them – which is an even stronger guarantee for Member States than as regards development policy treaties (which can be concluded by a qualified majority in the Council). It appears, however, that the specific provisions in an association agreement should be linked to the objective of that particular agreement – although note that the Court’s description of the broad general objective of the TCA is not a frolic by the judges, but comes from the purpose of the treaty as agreed by the parties (see Article 1 of the TCA), which was quoted earlier in the judgment.

Finally, it is notable that while the Court confirms that the withdrawal agreement had to be concluded by the EU without participation of the Member States (para 50: ‘Article 50(2) TEU confers on the European Union alone competence to…’ – emphasis added), the Court does not comment on the fact that – unusually for association agreements – the TCA was also concluded by the EU without the Member States also becoming parties alongside it. However, the overall tenor of the judgment seems favourable to the EU only being a party to this agreement too (see the Council legal service opinion on this point). Given the Court’s explicit reference to the shared competence of the EU over justice and home affairs, it might reasonably be inferred from this judgment that, as the Council legal service argued, the EU alone may conclude association agreements when they include provisions on shared competence – or the Council may instead to conclude them alongside the Member States in such cases. 

Of course, the EU and the UK continue to argue about the interpretation, application and revision of the Northern Ireland protocol to the withdrawal agreement. Nevertheless, the Court’s firm conclusion that the EU had extensive powers to conclude the two key treaties relating to Brexit should address most or all complications that some had argued limited the powers of the EU to conclude those treaties. In that sense, at least as far as the EU is concerned, the Court of Justice has Got Brexit Done.

 

 

Barnard & Peers: chapter 26

JHA4: chapter II:2, chapter II:3

Photo credit: Jimmy Harris, via Wikimedia commons

Extradition from Ireland to the UK after Brexit: the scope of EU powers

 

Professor Steve Peers, University of Essex

What are the legal implications of Brexit? This is a huge issue, with many different elements, but for the first time, the CJEU will soon be ruling on it – at least as far as the EU side is concerned – subsequent to the UK leaving the EU.

A recent CJEU Advocate General’s opinion suggests answers to fast tracked questions referred from the Irish Supreme Court (on appeal from the Irish High Court’s judgment), concerning extradition from Ireland to the UK under both the withdrawal agreement and the EU/UK Trade and Cooperation Agreement (TCA). The former treaty provides that the internal EU legal framework for simplified extradition – the European Arrest Warrant (EAW) law – still applied between the UK and EU during the transition period set out in that agreement, which lasted from 1 February 2020 to the end of that year. (As an exception, three Member States refused to hand over their own citizens, but Ireland was not one of them).

After that point, the separation provisions of that treaty applied: the EAW law still applies if a person was arrested on the basis of that law before the end of the transition period. If the EAW was issued before that date, but the fugitive was not arrested in time on the basis of the EAW law, the subsequent TCA provides that its extradition rules – which are similar, but not identical, to the EAW law – apply. (The TCA rules also apply to extradition requests first sent after the transition period ended, and the judgment in this case would also be relevant by analogy to those requests too).

The new case concerns two fugitives arrested in Ireland on the basis of British EAWs, who are challenging their extradition to the UK. Both EAWs were issued during the transition period, but one of them led to an arrest before the end of that period, hence the separation provisions kicked in, and the EAW law applies to the case. In the other case, the arrest took place after the end of this period, and so the TCA rules apply. The fugitive in the former case has already been convicted and sentenced to eight years in prison, whereas the fugitive in the latter case is subject to a pending prosecution for fourteen alleged criminal offences.

What's the legal issue? The two fugitives argue that they cannot be subject to these rules because even though Ireland agreed to both treaties in the EU Council, that country did not exercise a formal opt in as set out in the Justice and Home Affairs protocol relating to Ireland (and previously also applying to the UK) attached to the EU Treaties. If successful, their challenge could complicate not only extradition but other forms of criminal law cooperation between Ireland and the UK set out in the withdrawal agreement and TCA, in both directions (ie Irish requests to the UK too). It could also impact on criminal law cooperation between the UK and Denmark, which has a similar (but not identical) opt in protocol. (Criminal law cooperation would not entirely end, however, because there are other international treaties that would apply as a default, although they do not simplify cooperation as much as the treaties with the EU do).

The Advocate General’s opinion argues against the fugitives’ attempts to limit the scope of the treaties. First of all, she notes that prior CJEU case law on the competence to adopt EU laws (which extends equally to the competence to conclude international treaties) looks at the ‘predominant purpose’ of the act being adopted to determine what the competence to adopt it should be.

Applying that test to this case, in her view both the power to conclude the withdrawal agreement (Article 50 TEU) and the power to conclude association agreements (Article 217 TFEU, the legal basis to conclude the TCA on the EU side) are broad.

First, the Article 50 competence necessarily includes a wide scope of power to wrap up the legal relationship with the departing Member State, in particular as regards the separation provisions at issue in this case – although she also refers to broad powers over a transition period, during which these EAWs were issued (para 46):

To that end, as the Commission in particular explains, Article 50(2) TEU provides for the competence to conclude a single, comprehensive agreement, based on a single specific procedure, which encompasses all areas covered by the Treaties that are relevant to the withdrawal. Such an agreement covers the bringing to a conclusion of procedures conducted on the basis of EU law, which are ongoing at the time of withdrawal, as regards the withdrawing State. That requires detailed rules and arrangements in a vast number of different areas falling within the EU acquis. In order to ensure an orderly withdrawal in the interests of the European Union, its Member States and indeed the withdrawing State, those rules and arrangements may include transition periods during which, for limited periods after the withdrawal takes effect, EU law continues to apply to the withdrawing State.

While the rules in the withdrawal agreement ‘cover many different policies, including, in particular, the surrender regime in criminal cases’, and ‘[o]rdinarily, to conduct those policies the European Union would act under specific powers and would be required to respect restrictions on those powers, such as Protocol No 21’ (paras 49-50, footnote omitted):

However, in the light of the aim of the Withdrawal Agreement all of those specific policies are necessarily ancillary to the predominant overarching objective of providing a comprehensive regime for the transition from membership of the European Union to third-country status. This is an extremely broad objective in the sense that it must be possible for the measures required for its pursuit to concern a very wide variety of specific matters. Indeed, the agreement must be able to deal with the full range of matters covered by EU law.

This would have caused particular complications where the withdrawal agreement provided for powers exercised by unanimous voting, given that Article 50 foresees instead qualified majority voting in the Council to conclude such an agreement. In her view, this could not ‘be resolved by excluding from a withdrawal agreement matters requiring incompatible procedures because Article 50(2) TEU does not provide for any exceptions to the arrangements for a withdrawal’. More broadly, she justifies this interpretation by referring to ‘the exceptional situation of a withdrawal’: the UK example ‘has demonstrated’ that ‘such broad arrangements have to be made under intense political pressure and within a very short time frame’, and ‘[r]equiring unanimity in the Council or excluding certain matters from the general procedure would add complexity to that process and increase the risk that no agreement is reached’.

So the inclusion of specific rules on a subject cannot alter the characterisation of the agreement as a whole. Here the Advocate-General refers back by analogy to case law on development policy treaties (see discussion here), which has taken a similarly broad approach to the EU’s development policy powers, which can cover a wide range of issues that might be relevant to the development of non-EU countries. That case law has carved out an exception if the development policy treaties set out a specific obligation in a specific field which is distinct from development policy cooperation; but the opinion argues that even if that exception also applies to the Article 50 competence, these provisions of the withdrawal agreement do not go beyond the objective of securing an orderly withdrawal process. The attempted comparison with another Advocate-General’s opinion on the Istanbul Convention on violence against women (on which, see the discussion here) is wide of the mark, as the withdrawal agreement is obviously quite different from that treaty.

As for association agreements, relying on prior case law (for instance, Demirel), she argues that the power to conclude association agreements is also broad, encompassing special links between a non-EU country and the EU. Although the CJEU has pointed to specific legal competences applying within the framework of an association agreement, the Advocate-General correctly points out that this applies to measures implementing association agreements (referring to the judgment on social security and the association agreement with Turkey). As with Article 50 and development policy, she suggests that the power to conclude association agreements is a broad power encompassing many policy areas; and even if there is an exception relating to further concrete obligations in a specific field, it would again be irrelevant here because the TCA essentially continues the EAW system that previously applied between Ireland and the UK.

Comments

In principle it is too late now to prevent the conclusion of the withdrawal agreement or the TCA – unless time travel is possible. Perhaps people living in 2019 should be (should have been?) braced for an influx of (ex)Tory MPs hoping to prevent their past selves from voting for the same withdrawal agreement that now disgusts them: Owen Paterson driving up in a Randox-branded De Lorean, or a nudus Jacob Rees-Mogg telling a startled plebeian “I need your clothes, your boots and your penny farthing bicycle”.

But in a legal sense it is possible for a court to rule that the conclusion of a treaty (or the adoption of another legal act) was invalid from the outset, or at least (as in this case) that aspects of it have never applied – although it should be noted that the CJEU has in some cases limited the past effect of its judgments in such cases (cf Test-Achats). So even if the fugitives in this case were successful, the Court might take the view that the extradition provisions of the treaties still apply to Ireland on a provisional basis until the formalities of the opt in process are completed – which would seem likely in light of Ireland’s prior agreement to these agreements.

Is the analysis of the Advocate-General rejecting such arguments here convincing? On association agreements, the case law has indeed taken a broad view of their scope, with the guarantee for Member States in such cases consisting of the requirement for unanimity of Member States in the Council to conclude them. As for Article 50, the Wightman judgment of the CJEU has already interpreted that Article to provide for the ‘orderly withdrawal’ of a Member State – and the Advocate-General’s interpretation best reflects that interpretation.

While it does not necessarily follow from her analysis that the potentially permanent system set up by the Northern Ireland protocol is covered by the scope of Article 50 – as it goes beyond purely transitional or ‘winding up’ rules – her opinion points in that direction, referring to an ‘extremely broad’ power to address ‘the full range of matters covered by EU law’ via a ‘comprehensive regime’. If all that is needed is that a provision of the withdrawal agreement have a link with orderly withdrawal from the European Union, it is more easily arguable that the protocol satisfies that test.

Barnard & Peers: chapter 26

JHA4: chapter II:2, chapter II:3

Photo credit: diego_cue, via Wikimedia commons

The Brexit deal - Council legal service opinion

Here's the EU Council legal service's opinion on whether the Brexit deal can be concluded by the EU alone, or requires also the participation of its Member States (known as a 'mixed agreement'). It concludes that it can be concluded by the EU alone, because it is a mixture of competences exclusive to the EU and competences shared between the EU and its Member States. Following the case law of the CJEU, it's an option for the EU to conclude a treaty including provisions on shared competence either by the EU alone, or together with its Member States.  (The main points are also summarised in a Twitter thread). 

 

I.              Introduction

1.             At the meeting of Coreper on 23 November 2020, the representative of the Council Legal Service (CLS) made an oral intervention on the legal nature of the future agreement with the United Kingdom (UK) which was being negotiated, and more particularly on the issue of mixity and on the possible EU-only nature of that future agreement, through the exercise by the EU of its so-called potential competence. In the meantime, the Trade and Cooperation Agreement between the EU and Euratom, of the one part, and the UK, of the other, was signed on 30 December 2020 (the Trade and Cooperation Agreement).

2.             In reply to a request by several delegations, in particular at the meeting of the UK Working Party on 13 January 2021, this opinion confirms and develops in writing the answers already provided orally by the CLS. It focuses more particularly on the issue of the EU exercising externally its potential competence - i.e. the exercise of its competence in areas of shared competence which are not already subject to common rules within the meaning of Article 3(2) TFEU and the related case-law - and the legal consequences of such an exercise of competences.

3.             In view of the short time available in the ongoing conclusion process, this opinion focusses on the Trade and Cooperation Agreement and does not provide an in-depth examination of all its aspects, nor does it provide a comprehensive and detailed competence analysis.

II.           Factual and Legal BACKGROUND

4.             On 25 February 2020, the Council adopted its decision[1] authorising the opening of negotiations for a future agreement with the UK, to which the negotiating directives were annexed[2]. This decision also nominated the Commission as the EU negotiator. In parallel, the Council and the Representatives of the Governments of the Member States recorded a statement[3] to the Council minutes. In this statement, the Member States' representatives authorised the Commission to conduct negotiations in areas of the future relationship that fall within their competences and stated that the question whether the new agreement would be concluded by the EU or by the EU and its Member States remained to be determined at the end of the negotiations[4]

5.             The negotiations, which were completed on 24 December 2020, resulted in three agreements: the Trade and Cooperation Agreement; the Agreement between the EU and the UK concerning security procedures for exchanging and protecting classified information, which supplements the Trade and Cooperation Agreement; and an Agreement between the Government of the UK and Euratom for Cooperation on the Safe and the Peaceful Uses of Nuclear Energy. As indicated above, this opinion focusses on the first Agreement.

6.             Under its first Article, the Trade and Cooperation Agreement "establishes the basis for a broad relationship between the [EU and the UK] within an area of prosperity and good neighbourliness characterised by close and peaceful relations based on cooperation, respectful of the Parties' autonomy and sovereignty"[5]. When deciding to sign the Agreement, the Council characterised it as "[establishing] the basis for a broad relationship between the [EU and the UK] involving reciprocal rights and obligations, common actions and special procedures" which is the wording from Article 217 TFEU on association agreements, on the basis of which the Council chose to sign the Trade and Cooperation Agreement with the UK[6].

7.             The Trade and Cooperation Agreement with the UK sets out arrangements in a vast array of areas such as trade in goods, services, investments, digital trade, capital movements and payments, intellectual property, public procurement, energy, aviation and road transport, fisheries, social security coordination, the absence of visas for short term visits (Part Two of the Agreement), law enforcement and judicial cooperation in criminal matters (Part Three), thematic cooperation (health and cybersecurity) (Part Four) and participation in EU programmes (Part Five).

It is underpinned by provisions ensuring a common institutional framework (Part One of the Agreement), including a dispute settlement mechanism (Part Six), and a level playing field between the Parties. There are 49 annexes and three protocols to the Agreement : a Protocol on administrative cooperation and combating fraud in the field of value added tax and on mutual assistance for the recovery of claims relating to taxes and duties; a Protocol on mutual administrative assistance in customs matters; and a Protocol on social security coordination.

The Agreement provides in its second Article that future bilateral agreements between the EU and the UK "shall constitute supplementing agreements to this Agreement, unless otherwise provided for in those agreements" and that "such supplementing agreements shall be an integral part of the overall bilateral relations as governed by this Agreement and shall form part of the overall framework"[7].

8.             On 29 December 2020, the Council adopted Decision No (EU) 2020/2252, on the signing, on behalf of the Union, and on provisional application of the Trade and Cooperation Agreement and of the Security of Information Agreement ('the decision on signature')[8].

9.             Through this decision, the Council, "in view of the exceptional and unique character of the Trade and Cooperation Agreement, which is a comprehensive agreement with a country that has withdrawn from the Union (…) [decided] to make use of the possibility for the Union to exercise its external competence with regard to the [UK]" (recital 6). The Council hence made the political choice that the Trade and Cooperation Agreement was to be concluded as an EU-only agreement. This is explicitly indicated in the decision on signature.

The reasons for this political choice are explained in recital 6 - "in view of the exceptional and unique character of the [Agreement]" - but also, indirectly, in recital 16 of the decision on signature which explains the reasons for the Council deciding to provisionally apply the Agreement by the fact that that it concerns "a country that has withdrawn from the Union", the UK being therefore "in a different and exceptional situation with regard to the Union compared to other third countries". The level of cooperation between the EU and the UK was indeed going to decrease from a very high level at the end of the transition period - during which the EU acquis still applied to the UK - to a lower level of cooperation as from the end of that period, thus causing disruption the severity of which could be limited through provisional application of the Trade and Cooperation Agreement.

10.         The consequences, and limits, of having made the above political choice are expressly set out in recital 15 and in Article 10 of the decision on signature where it is stated that "the exercise of Union competences through the Trade and Cooperation Agreement shall be without prejudice to the respective competences of the Union and of the Member States in any ongoing or future negotiations for, or signature or conclusion of, international agreements with any other third country, or in relation to any future negotiations for, or signature or conclusion of, any supplementing agreements [to the Trade and Cooperation Agreement]".

11.         On 25 December 2020, the Commission submitted a proposal for a Council decision on the conclusion of the Trade and Cooperation Agreement[9]. The discussions within the Council on this proposal are ongoing.

III.        Legal Analysis

12.         The views of the CLS have been sought in relation to the legal nature of the Trade and Cooperation Agreement, and more specifically, on the issue of the EU exercising its potential competence, on the issue of the EU-only nature of the Agreement and on the issue of the legal consequences for Member States of such an exercise of competences. As indicated in paragraph 3 above, the CLS will not examine each title of the agreement or proceed to a comprehensive and detailed competence analysis.

A.           EU exclusive and shared competences, as interpreted by the Court of Justice

13.         In accordance with Article 3(1) TFEU, the EU has exclusive competence, in particular, in the following areas: customs union, the establishment of competition rules necessary for the functioning of the internal market, the conservation of marine biological resources under the common fisheries policies, and the common commercial policy.

14.         In accordance with Article 3(2) TFEU, the EU "also [has] exclusive competence for the conclusion of an international agreement (…) in so far as its conclusion may affect common rules or alter their scope". As clarified by the Court in its judgment in the Broadcasting Convention Case[10], this last limb of Article 3(2) codifies the so-called AETR, or ERTA, jurisprudence[11].

15.         On shared competences, Article 4(1) and (2) TFEU provides the following:

"1. The Union shall share competence with the Member States where the Treaties confer on it a competence which does not relate to the areas referred to in Articles 3 and 6.

2.  Shared competence between the Union and the Member States applies in the following principal areas:

(a) internal market; (…)

(e) environment;

(f)  consumer protection;

(g) transport; (…)

(i)  energy

(j)  area of freedom, security and justice

(k) common safety concerns in public health matters (…)"

16.         The Court has consistently held that there is a risk that common EU rules may be affected by commitments undertaken by Member States, or that the scope of those rules may be altered, such as to justify an exclusive external competence of the EU under Article 3(2) TFEU, where those commitments fall within the scope of the said common EU rules[12].

17.         A finding that there is such a risk does not presuppose that the area covered by the international commitments (whether actual or envisaged) and that covered by the EU rules coincide fully. In particular, the scope of common EU rules may be affected or altered by international commitments where those commitments fall within an area which is already largely covered by such rules. Furthermore, such a risk of common EU rules being affected may be found to exist where the international commitments at issue, without necessarily conflicting with those rules, may have an effect on their meaning, scope and effectiveness[13].

When analysing the relationship between the international instrument at stake and the relevant EU rules, that analysis must take into account the areas covered, respectively, by the rules of EU law and by the provisions of that instrument, their foreseeable future development and the nature and content of those rules and those provisions, in order to determine whether the said instrument is capable of undermining the uniform and consistent application of the EU rules and the proper functioning of the system which they establish[14].

B.            Consequences of EU exclusive competences on the Member States

18.         The exercise internally, by the EU, of its competence has consequences on the Member States insofar as, if the EU thereby acquires exclusive competence, Member States may no longer enter into international commitments outside the framework of the EU institutions in the areas falling within EU exclusive competence[15].

19.         Conversely, internally, where the EU has not (yet) exercised its shared competences in a given area, the Member States can continue exercising their competences in that area "to the extent that the Union has not exercised its competences" (Article 2(2) TFEU). The same is true, externally, where it would result from the analysis of an (envisaged) international commitment that the conditions for exclusivity set out in Article 3(2) TFEU, as interpreted by the Court in its extensive case-law on external competences (see paragraphs 16 and 17 above), are not met and that, as a consequence, Member States can still exercise their competences externally.

20.         By way of example, the EU has not yet adopted common internal rules with regard to air traffic rights granted to third countries. The competence to conclude agreements with third countries on such matters has therefore not become an exclusive competence of the EU[16] and can be exercised either by the Member States or by the EU[17].

C.           Mixity of international agreements: obligatory or facultative

21.         It is recalled that, in accordance with the principle of conferral (Article 5 TEU), an international agreement is mixed, i.e. it is signed and concluded both by the EU and its Member States, if it concerns competences that belong both to the EU and to its Member States.

22.         There are, in practice, two types of mixity: obligatory or facultative.

Mixity is obligatory where, in addition to areas of EU competence, the envisaged agreement covers one or several areas that fall outside EU competences, i.e. where the Treaties have not conferred competences on the EU in that particular area. In such a case, there is no political choice: the agreement must be concluded both by the EU and its Member States.

Mixity is facultative where the envisaged agreement covers one or several areas where the EU has shared competences which are potential, i.e. not yet exercised or not yet covered by EU common rules regarding which the envisaged agreement would have consequences as mentioned in Article 3(2) and the related case-law. In such a case, the agreement may be concluded either by the EU and its Member States or by the EU alone. Depending on whether the Council decides to exercise all the EU potential competences or not, the agreement will be an EU-only or a mixed agreement. This is a political choice to be made by the Council on the basis of the relevant Treaty provisions which confer competence on the EU.

23.         In its Singapore FTA Opinion,[18] the Court provided clarifications as to the division of competence between the EU and the Member States in the field of trade and investment. The Court concluded that most of the Free Trade Agreement with Singapore fell within the exclusive competence of the EU either because it was covered by the Common Commercial Policy, including on foreign direct investment, as defined in Article 207(1) TFEU, or because it was covered by the Common Transport Policy (Articles 91 and 100(2) TFEU)[19].

24.         In the same Opinion, the Court recalled that foreign direct investment is an exclusive competence of the EU. However, to the extent that the FTA provisions related to indirect investment (i.e. portfolio investment), the competence for that was "shared between the European Union and the Member States pursuant to Article 4(1) and (2)(a) TFEU"[20]. On the possible exercise of such potential shared competence, the Court clarified in its judgment in Weddell, that "(…) the mere fact that international action of the [EU] falls within a competence shared between it and the Member States does not preclude the possibility of the required majority being obtained within the Council for the [EU] to exercise that external competence alone"[21].

25.         In the case of facultative mixity, where the EU has competence for the matters covered by an agreement, of which at least some fall within its potential competence, that potential competence can still be exercised by the Member States if they wish. The Council may however decide, for a particular agreement, to exercise the potential EU competence on the basis of the relevant Treaty legal basis,[22] in accordance with the voting rules provided therein. Exercising or not the EU potential competence externally when concluding an agreement is a matter of political choice for the Council[23].

26.         This is to be distinguished from cases of obligatory mixity where the subject matter of an agreement partially covers matters for which the EU has competence, and partially matters for which the EU has no competence whatsoever. In such a situation, as said above in paragraph 22, mixity is not a political choice but a legal obligation[24].

27.         It is recalled that the conclusion of mixed agreements presents procedural and political complexity as the process relating to the conclusion of recent mixed agreements testifies. Indeed, the entry into force of a mixed agreement requires ratification not only by the EU (conclusion by the Council, usually after obtaining the consent of the European Parliament), but also by all its Member States in accordance with their constitutional requirements. As a consequence, in principle, the EU will wait for ratification by all Member States before ratifying itself. Such a process may take a long time and depends on whether the ratification runs smoothly or not in all Member States. By contrast, in order to enter into force, an 

EU-only agreement needs only to be ratified by the EU, and can in practice be concluded within a shorter period of time than a mixed agreement.

D.           The particular case of the trade and cooperation agreement with the UK

28.         While not entering into a detailed examination of its different Titles and provisions, a rapid examination of the Trade and Cooperation Agreement shows that no situation of obligatory mixity arises: the EU has competence in all the fields covered by it.

29.         The CLS recalls in this context that, by way of example, provisions related to trade or fisheries contained in Heading One of Part Two (Trade) and Heading Five of Part Two (Fisheries) are exclusive competences of the EU by virtue of Article 3(1) TFEU. Other provisions of the Agreement, for instance, Title II of Heading Two (Aviation safety) or of Part Three (Law enforcement and judicial cooperation in criminal matters), cover matters that have become exclusive by exercise or are largely covered by EU acquis that will be or risk being affected by the Agreement[25].

30.         Conversely, there are certain other provisions, for instance traffic rights in the aviation area, which belong to shared EU competences not yet exercised internally, and which are therefore only potential EU competences. In relation to these potential competences, the Council could decide, when adopting the decision on signature, that the EU would exercise this type of non‑exclusive potential competences, thus making the Trade and Cooperation Agreement an EU‑only agreement.

31.         When it adopted the decision on signature on 29 December 2020, the Council made this political choice and decided to exercise the EU competence in the areas of potential EU competence. That decision produces legal effects not least because it has entered into force on the day of its adoption by the Council (29 December 2020) and the Trade and Cooperation Agreement is being provisionally applied since 1 January 2021. It follows that the Agreement must also be concluded as an EU-only agreement.

32.         As indicated above in paragraphs 21 to 25, only where the EU is vested with the competence to do so in the Treaties, can it conclude an international agreement, in accordance with the relevant legal basis. In the case at stake, the Trade and Cooperation Agreement was signed and provisionally applied on the basis of Article 217 TFEU, as the substantive legal basis, in conjunction with the relevant procedural legal bases (Article 218(5) and (8) TFEU).

33.         Article 217 TFEU empowers the EU to conclude with a third country an agreement establishing an association involving reciprocal rights and obligations, common action and special procedure. The areas covered by such an agreement should be within the limits of the powers that the Member States have conferred on the EU in the Treaties to attain the objectives set out therein.[26] Article 217 TFEU can be used whenever there is EU competence - i.e. where the Treaty confers the appropriate competence on the EU in the different areas covered by the agreement - even if this competence has not been exercised fully or is only potential. Article 217 TFEU however is not to be used as a legal basis if there is no underlying competence, i.e. the underlying sectoral competence must exist for Article 217 TFEU to be used as a legal basis.

34.         Article 217 TFEU allows the EU to conclude, by unanimity, a wide ranging agreement on matters of EU competence without the need to identify in detail the areas where the EU has already exercised or not its competence. It can include areas of EU competence where the sectoral legal basis requires unanimity or qualified majority voting, as well as areas of potential EU competence not yet exercised internally.

E.            Exercise vis-à-vis the UK of the EU shared competence in social security coordination and aviation traffic rights

35.         By way of example, the EU has a shared competence in the area of social security coordination (Articles 48 TFEU). The EU has concluded several agreements with third countries that contain rules on the coordination of social security. This is typically the case for association agreements based on Article 217 TFEU. The lack of completion of free movement of persons is not a hindrance to the conclusion of an EU agreement in the field of social security coordination[27]. So far, agreements with third countries covering also the area of social security coordination have been generally concluded as mixed agreements. However, given that the EU has competence in this area, this is a matter of political choice. It is equally possible for the EU to choose to exercise its competence externally and to conclude such an agreement as an EU-only agreement.

36.         Similarly, the EU has shared competence in the area of air transport (Articles 91 and 100(2) TFEU). Once and to the extent that the EU exercises internally such shared competence, it becomes exclusively competent externally for matters affecting those internal rules. As the EU has not yet exercised this shared competence internally with regard to traffic rights granted to third countries, agreements with third countries on such matters are often concluded as mixed agreements (facultative mixity). The Council can choose whether or not to use it externally.

F.            Effect for Member States of the EU exercising its shared (potential) competence

37.         The external exercise of the above EU competences with regard to a given third country does not prevent Member States from exercising their competence on that same matter vis-à-vis other third countries. To take an example, the EU has an aviation agreement with Switzerland that has existed for more than 20 years[28] and which covers traffic rights. The existence of this agreement has not prevented the Member States from concluding agreements on traffic rights with other third countries.

38.         Hence, the fact that the Council has decided to opt, in the specific case of the Trade and Cooperation Agreement with the UK, for an EU-only agreement does not prevent Member States from continuing to exercise their national competences vis-à-vis other third countries in that same area of potential EU competence. Exercise by the EU of its potential competences in the concerned area vis-à-vis the UK does not trigger a situation of exclusivity as regards its relations with other third countries nor a situation of exclusivity for the area of traffic rights concerning other third countries as if that competence had been exercised internally. Therefore, Member States remain free to continue concluding international agreements in these areas of shared competence with third countries other than the UK under the same conditions as before the signature of the Trade and Cooperation Agreement. As explained above in paragraph 10, this possibility is explicitly confirmed in recital 15 and Article 10 of the decision on signature.

G.           Provisions on possible so-called "top-ups" by Member States

39.         Moreover, the Trade and Cooperation Agreement provides for, or does not exclude, the possibility for Member States to enter into bilateral agreements with the UK concerning specific matters covered by the Agreement in the areas of air transport, administrative cooperation in the field of customs and VAT and social security coordination.[29] Member States may do so provided such agreements are compatible with EU law, do not undermine the functioning of the Agreement and are otherwise compatible with the conditions set out in Articles 6 to 8 of the decision on signature, which foresees an internal mechanism of information and cooperation between the Member States and the Commission, culminating with the possibility of authorising bilateral arrangements or agreements that Member States would conclude with the UK in those areas.

40.         This internal mechanism is an expression of the duty of sincere cooperation incumbent on the Member States (Article 4(3) TEU)[30], which is of general application and does not depend on whether the competence concerned is exclusive[31]. On this basis, Member States have a duty to refrain from any action which could jeopardise the attainment of the EU objectives, and to ensure that such arrangements or agreements are compatible and do not undermine the functioning of the Trade and Cooperation Agreement. To the extent that it frames and organises the possibility of certain bilateral agreements supplementing the Trade and Cooperation Agreement (so-called 'top-ups') as allowed or not prohibited by the Agreement itself, this internal mechanism is also an expression of the fact that the Agreement is part of EU law, is binding in accordance with Article 216(2) TFEU, and has therefore primacy.

41.         The existence of the internal mechanism is independent of the nature of the competence at stake. To take the example of traffic rights, the EU is exercising in the Trade and Cooperation Agreement its external competence on certain traffic rights vis-à-vis the UK. Certain bilateral agreements supplementing the Trade and Cooperation Agreement are permitted by the Agreement itself in accordance with the conditions set out therein[32]. The Agreement itself specifically prohibits further top-ups (Article AIRTRAN.23)[33]. The internal empowerment mechanism in Article 6 of the decision on signature regulates how the permitted top-ups are going to be authorised. Therefore, at least as far as top-up agreements concerning air traffic rights are concerned, the authorisation mechanism is not only an expression of the duty of sincere cooperation. It is also necessary because the shared, previously unexercised, external competence on traffic rights vis-à-vis the UK is now governed by the provisions of the Trade and Cooperation Agreement which has primacy, and is a matter of exclusive EU competence vis-à-vis the UK. However, as stated above in paragraphs 37 to 38 and explicitly confirmed in recital 15 and Article 10 of the decision on signature, that EU competence is not exclusive vis-à-vis other third countries.

42.         Lastly, the CLS takes this opportunity to clarify, as it did in Coreper on 22 January 2021, that contrary to the statement made by the Commission to the minutes of the Council on 29 December 2020, in connection with the adoption of the decision on signature,[34] it does not see any legal obstacle for a legal act based on Articles 217 and 218 TFEU, such as the decision on signature, or the future Council decision concluding the agreements, to contain such an internal mechanism for authorisation of bilateral arrangements or agreements between individual Member States and the UK. Such internal authorisation or empowerment mechanisms may be set out either in a legal act adopted on the basis of the relevant sectoral substantial legal basis (i.e. a legislative act) or in a legal act adopted by the Council for signing and concluding international agreements[35].

IV.        Conclusion

In conclusion, the Council Legal Service confirms its view that, as it only covers areas where the EU has competence, whether exclusive or potential, the Trade and Cooperation Agreement may be concluded as an EU-only agreement on the basis of Article 217 TFEU. The Council decided to make this choice when it adopted the decision on signature on 29 December 2020.

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[1]           Council Decision (EU, Euratom) 2020/266 of 25 February 2020 authorising the opening of negotiations with the United Kingdom of Great Britain and Northern Ireland for a new partnership agreement (OJ L 58, 27.2.2020, p. 53).

[2]           Doc 5870/20 ADD 1 REV 3, Annex to Council Decision authorising the opening of negotiations with the United Kingdom of Great Britain and Northern Ireland for a new partnership agreement, 25 February 2020.

[3]           Annex B of Doc. 6239/20.

[4]           "[T]he Member States' representative authorise the Commission to conduct negotiations in areas (…) that fall within the competences of the Member States (…)" and "the question of whether the (…) agreement will be concluded by the Union or by the Union and its Member States will be determined at the end of the negotiations." (emphasis added).

[5]              See Article COMPROV.1 (Purpose) of the Agreement. This wording is similar to that in Article 8(1) TEU on the EU's relationships with neighbouring countries.

[6]              See recital 5 of Council Decision (EU) 2020/2252 of 29 December 2020 on the signing, on behalf of the Union, and on provisional application of the Trade and Cooperation Agreement between the European Union and the European Atomic Energy Community, of the one part, and the United Kingdom of Great Britain and Northern Ireland, of the other part, and of the Agreement between the European Union and the United Kingdom of Great Britain and Northern Ireland concerning security procedures for exchanging and protecting classified information (OJ L 444, 31.12.2020, p. 2).

[7]           See Article COMPROV.2 (supplementing agreements).

[8]           See above footnote 7.

[9]           COM (2020) 856 final.

[10]          Case C‑114/12, Commission v. Council ('Broadcasting Convention'), judgment of the Court (Grand Chamber) of 4 September 2014, EU:C:2014:2151, paragraphs 66 and 67. See also Opinion 1/13 of the Court of Justice (Grand Chamber) of 14 October 2014, Child Abduction Convention, EU:C:2014:2303, paragraphs 69 to 74.

[11]          Case 22/70, Commission v Council ('ERTA'), judgment of 31 March 1971, EU:C:1971:32, paragraphs 17 to 19: "17. In particular, each time the Community, with a view to implementing a common policy envisaged by the Treaty, adopts provisions laying down common rules, whatever form these may take, the Member States no longer have the right, acting individually or even collectively, to undertake obligations with third countries which affect those rules. 18. As and when such common rules come into being, the Community alone is in a position to assume and carry out contractual obligations towards third countries affecting the whole sphere of application of the Community legal system. 19. With regard to the implementation of the provisions of the Treaty, the system of internal Community measures may not therefore be separated from that of external relations."

[12]          Opinion 2/91 of the Court of Justice of 19 March 1993, ILO, EU:C:1993:106, paragraph 25; Case C-467/98, Commission v Denmark ('Open Skies'), judgment of the Court of 5 November 2002, EU:C:2002:625, paragraph 82; and Opinion 1/03 of the Court of Justice (Full Court) of 7 February 2006, Lugano Convention, EU:C:2006:81, paragraphs 120 to 126.

[13]          See Opinion 2/91 ILO (op. cit. footnote 13), paragraphs 25 and 26; Judgment in 'Open Skies' (op. cit. footnote 13), paragraph 82; Opinion 1/03 Lugano Convention (op. cit. footnote 13), paragraphs 120 and 126; Judgment in 'Broadcasting Convention' (op. cit. footnote 11), paragraphs 68 to 73; as well as Joined Cases C‑626/15 and C‑659/16, Commission v Council ('Weddell') judgment of the Court (Grand Chamber) of 20 November 2018, EU:C:2018:925, paragraphs 113 and 114 and the case-law cited.

[14]          See Opinion 3/15 of the Court of Justice (Grand Chamber) of 14 February 2017, Access Rights, EU:C:2017:114, paragraph 108 and the case-law cited.

[15]             Opinion 2/91 ILO (op. cit. footnote 13), paragraphs 25 and 26; Judgment in 'Open Skies' (opt. cit. footnote 13), paragraph 82.

[16]             Judgment in 'Open Skies' (opt. cit. footnote 13), paragraphs 90 to 92.

[17]             See CLS opinion in 5990/18 on the Regulation on competition in air transport, paragraphs 23 and 24.

[18]          Opinion 2/15 of the Court of Justice (Full Court) of 16 May 2017, Singapore FTA, EU:C:2017:376.

[19]          In the case of transport services, the Court deduced this from its AETR case law: see Opinion 2/15 Singapore FTA (op. cit. footnote 19), paragraph 170 and further. Note however that air transport services were not covered in the Singapore agreement, see paragraph 63 of that Opinion.

[20]          Opinion 2/15 Singapore FTA (op. cit. footnote 19), paragraph 243.

[21]          Judgment in 'Weddell' (opt. cit. footnote 14), paragraph 126.

[22]          See CLS opinion in 12866/19 on the CETA Investment Court System (ICS), paragraph 6.

[23]          See Case C-600/14, Germany v. Council ('OTIF'), judgment of the Court (Grand Chamber) of 5 December 2017, EU:C:2017:935, paragraph 68; see also Judgment in 'Weddell' (opt. cit. footnote 14), paragraphs 126 and 127.

[24]          See Opinion 2/15 Singapore FTA (op. cit. footnote 19), paragraph 292. See also CLS opinions in 12866/19 (CETA ICS) and 6442/19 (UN Convention on Investor-State Arbitration).

[25]          See, inter alia, Regulation (EU) 2018/1139 of the European Parliament and of the Council of 4 July 2018 on common rules in the field of civil aviation and establishing a European Union Aviation Safety Agency (OJ L 212, 22.8.2018, p. 1) and Directive (EU) 2016/681 of the European Parliament and of the Council of 27 April 2016 on the use of passenger name record (PNR) data for the prevention, detection, investigation and prosecution of terrorist offences and serious crime (OJ L 119, 4.5.2016, p. 132).

[26]          See Case C-81/13, UK v Council ('social security Turkey'), judgments of the Court (Grand Chamber) of 18 December 2014, EU:C:2014:2449, paragraphs 61 and 62.

[27]             As regards Turkey, for example, the Court compensated for the lack of completion of free movement with the addition of Article 217 TFEU to Article 48 TFEU as a substantial legal basis for the adoption of the EU position, to be taken within the Association Council set up by the EU-Turkey Association Agreement, with regard to the adoption of provisions on the coordination of social security systems (see judgment in 'social security Turkey' (op. cit. footnote 27), paragraph 63.

[28]          Agreement between the European Community and the Swiss Confederation on Air Transport, signed on 21 June 1999 (OJ L 114, 30.4.2002, p. 73).

[29]          See Article AIRTRN.3 and Article 41 of the VAT Protocol.

[30]          Article 4(3) TEU: "Pursuant to the principle of sincere cooperation, the Union and the Member States shall, in full mutual respect, assist each other in carrying out the tasks which flow from the Treaties. The Member States shall take any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the Union. The Member States shall facilitate the achievement of the Union's tasks and refrain from any measure which could jeopardise the attainment of the Union's objectives."

[31]          C-246/07, Commission v Sweden, judgment of the Court (Grand Chamber) of 20 April 2010, EU:C:2010:203, paragraph 71.

[32]          Article AIRTRN.3(5) TCA: "the rights mutually granted in accordance with paragraph 4 (i.e. top-ups) shall be governed by the provisions of this Title."

[33]          "The United Kingdom and a Member State may not grant each other any rights in connection with air transport to, from or within their respective territories other than those expressly laid down in this Title, save as provided for in Article AIRTRN.3 (4) and (9) [traffic rights]."

[34]          Doc. 5525/20 ADD 1.

[35]          The CLS recalls that Article 4 of the Council Decision on the conclusion of the Withdrawal Agreement establishes a similar internal mechanism in relation to agreements in areas of EU competence that certain Member States are allowed, under the conditions referred in that provision, to conclude with the UK (see Council Decision (EU) 2020/135 of 30 January 2020 on the conclusion of the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community, OJ L 29, 31.1.2020, p. 1).