Rainbow families and the right to freedom of movement – the V.М.А.v Stolichna obshtina, rayon ‘Pancharevo’ case

Chiara De Capitani, Linguist agent at the European Commission and honorary fellow European Union law at the University of Naples "L'Orientale". The information and views set out in this article are those of the author and do not necessarily reflect the official opinion of the European Commission.

Introduction

‘A child is in no way responsible for the differences in the scales of values in society between EU Member States’, notes Advocate General Juliane Kokott in her opinion (AG’s opinion). Yet, unfortunately, children of rainbow families face the very real risk to have their legal ties to one or both parents disappear once they cross the border of their Member State of residence. A recent study by the European Parliament (the ‘EP Study’ by Tryfonidou, Wintemute) found that in at least 11 EU Member States same-sex couples with children may not be legally recognised as the joint parents of their children.

The present Grand Chamber ruling, C‑490/20 V.М.А. v Stolichna obshtina, rayon ‘Pancharevo’ (Sofia municipality, Pancharevo district, Bulgaria) tackles a recurring problem faced by rainbow families: the refusal from an EU Member State to recognise a birth certificate issued in another Member State that indicates two parents of the same sex as the legal parents of a child. This Court of Justice of the European Union (CJEU) ruling builds on the 2019’s C‑673/16 Coman and others ruling (discussed here) and allows the AG and the CJEU to explore and clarify several aspects of the tension between the cross-border protection of family life and the best interests of the child with a Member States’ protection of its national identity.

Facts of the case

A same-sex couple composed of a Bulgarian national (V.M.A, the applicant) and a British national (K.D.K) have been residing in Spain since 2015 and built their family life there: they married in 2018 and welcomed a baby daughter (S.D.K.A) in 2019. The Spanish authorities issued the child a birth certificate recognising both partners as her mothers and not disclosing who gave birth to her.

V.M.A requested the Bulgarian authorities issue her daughter a Bulgarian birth certificate, a pre-condition under Bulgarian law to issue identity documents certifying the latter’s Bulgarian citizenship. However, Bulgarian law only recognises heterosexual marriages and the parentage of children as composed of a father and a mother. Therefore, Bulgarian authorities rejected the application for the issuing of a Bulgarian birth certificate on two grounds: the absence of information concerning the child’s birth mother and the fact that the registration of two same-sex parents in a birth certificate is contrary to Bulgarian public policy. The applicant brought an action against the refusal decision before the Administrative Court of the City of Sofia (the referring court).

Analysis

The Court’s answer to the recast ‘judgment of Solomon’

This already complex case is off to a rocky start when, at the hearing, the Bulgarian Government refutes the referring court’s claim that the child is a Bulgarian national. The referring court considers that the child has Bulgarian nationality under Article 25(1) of the Constitution of Bulgaria stating that ‘a person is a Bulgarian national if at least one of the parents is a Bulgarian national’. On the other hand, the Bulgarian government considers that the Bulgarian mother, to be recognized as such, has either to disclose that she gave birth to the daughter or proceed to become the “legal mother” following Article 64 of the Family Code.

These hypothetical possibilities offered by the government create a twisted “judgment of Solomon”-type of situation for both mothers: they can either sacrifice their daughter’s claim to Bulgarian citizenship and the derived family law rights this implies with the Bulgarian mother or they can defend their daughter’s right to Bulgarian citizenship by claiming the Bulgarian mother is the sole mother, severing the British mother’s parent-child relationship to her daughter in Bulgaria.

The Court, however, did not believe that the threat of splitting the child in two should have been the way to reach a fair compromise, quite the contrary.

Firstly, the Court claims that the referring court alone has jurisdiction in this matter, so the CJEU’s ruling will consider that S.D.K.A. has Bulgarian nationality by birth due to the Bulgarian constitution.

Secondly, the Court clarifies, the daughter - in her capacity as a Union citizen - can rely on the rights pertaining to Union citizenship, including Article 21(1) of the Treaty on the Functioning of the European Union (TFEU) also against her Member State of origin and even she was born in another Member State and has never travelled to her State of origin.

Thirdly, since every citizen of the Union has the right to move and reside freely within the territory of the Member States, Article 4(3) of Directive 2004/38/EC (the ‘Freedom of movement’ Directive) requires Member States to issue their nationals identity documents and, the Court clarifies ‘this document has to be issued regardless a of whether a new [Bulgarian] birth certificate is drawn up’.

Fourthly, such identity document must enable the daughter to move and reside freely within the territory of the Member States with each of her two mothers.

Lastly, since Article 21(1) TFEU includes the right to lead a normal family life with ones’ family members and the Spanish authorities have lawfully established the parent-child relationship between S.D.K.A and her two parents all Member States have to recognize V.M.A and K.D.K as having the right to accompany that child within the territory of Member States when exercising her freedom of movement. Whether one of the mothers gave birth to the daughter or whether her parents are biological or legal does not seem to be of interest to the Court: the fact that one Member States has recognised them as parents is sufficient to require all other Member States to mutually recognize this birth certificate for the purpose of freedom of movement. In practical terms also the same-sex parents of a child are entitled to a document which mentions them as being entitled to travel with their child: this document can be drawn up also by the host Member State and may be a birth certificate (like the present case).

The fragile balance between national identity, public policy and fundamental rights, including the right to respect for family life

The Court proceeds with analysing whether Article 4(2) of the Treaty on European Union (‘TEU’) protecting Member States’ national identity could serve as a justification for the Bulgarian authorities’ refusal to issue a birth certificate and an identity document to S.D.K.A.

Building on the Coman case, the Court recalls that the concept of public policy as a ‘justification for a derogation from a fundamental freedom must be interpreted strictly’. Recognizing the parent-child relationship between the child and each of her parents in the context of the child’s exercise of her rights under Article 21 TFEU does not undermine the national identity or pose a threat to the public policy of that Member State (which is thus still free to decide whether or not to allow same-sex marriage and parenthood under its national law).

The reverse of the medal is that ‘a national measure that is liable to obstruct the exercise of freedom of movement of persons may be justified only where such a measure is consistent with the fundamental rights guaranteed by the Charter’ and, the Court finds, Bulgaria’s “judgment of Solomon”-style proposals would be contrary to several fundamental rights of each mother and their daughter. For instance, the right to respect for private and family life, guaranteed by Articles 7 Charter of Fundamental Rights of the European Union (the Charter) and 8 of the European Convention on Human Rights (ECHR) and following the case-law of the European Court of Human Rights (ECtHR) and the CJEU, cover both the mutual enjoyment by parent and child of each other’s company and the relationship of same-sex couples.

The right to have the best interests of the child taken into account, guaranteed by article 24 of the Charter translates also in obligations for Member States deriving from the UN Convention on the Right of the Child not to discriminate the latter (Article 2) including on the basis of the sexual orientation of the child’s parents when registering their name and nationality (Article 7).

Interestingly, with regards to the need to take due account to the provisions of the Convention on the rights of the Child when interpreting article 24 of the Charter, the Court refers to its previous M.A.v État belge ruling. With regards to the return of irregularly staying third country nationals, the Court has ruled twice in the past 18 months that family unity must be taken into account before adopting a return decision, even where the person to whom the return decision is addressed is not a minor but their father. The M.A.v État belge ruling concerned a father who was considered a threat to public order due to having committed  several offences whereas the LM v Centre public d’action sociale de Seraing ruling concerned a father who was unable to meet his or his adult seriously-ill daughter’s needs without receiving social assistance. In both cases the Court found that the need to protect the family life of these children under Articles 5 (a) and 14 (1) (a) of Directive 2008/115/EC (the ‘Returns’ Directive) overrode the State’s prerogative to return their fathers.

Lastly, these rights would risk being violated also whether S.D.K.A did not have Bulgarian nationality. In that case, both her and her mother K.D.K would fall under the definition of ‘spouse’ and ‘direct descendant’ within the meaning of article 2 of Directive 2004/38/EC due to the fact that V.M.A is a Union citizen and is therefore also protected by Article 21(1) TFEU.

The finding by the Court that the definition of ‘direct descendant’ covers the child of a same-sex couple will likely extend to the right to family reunification of third country nationals currently provided by several EU instruments. For instance, various directives concerning certain types of workers from third countries (researchers, highly skilled workers, workers in the field of intra-corporate transfers) refer to the definition of family pursuant to art. 4 par. 1 of Directive 2003/86/EC (the ‘Family Reunification’ Directive) and allow Member States to recognize more favourable provisions with respect to family reunification. As Directive 2003/86/EC includes in its list of family members the ‘spouse’ and ‘minor children’ of the applicant, by analogy, same-sex migrant couples with or without children should benefit from these provisions.

According to various reports (EMN) a dozen Member States currently allow same-sex couples to apply for family reunification and several Member States extend this right also to highly qualified workers (ICF) and to workers in the context of intra-corporate transfers.

Implementation of the rights recognized by the present case

The impact this ruling will have on the day-to-day life of this family is unclear at this stage.

Firstly, there is no exhaustive list of the ‘rights under Article 21 TFEU and secondary legislation relating thereto’ to which S.D.K.A has a right to nor a precise definition of the rights that the “right to lead a normal family life” under Article 21 (1) TFEU would entail. The AG clarifies that, since the definition of ‘direct descendant’ under Directive 2004/38/EC must also be adopted with regard to the concept of the ‘family members’ of a migrant worker for the purposes of Regulation 492/2011/EU (the ‘freedom of movement for workers’ Regulation) S.D.K.A may claim, for example the social and tax advantages associated with V.M.A. By the same reasoning, said Regulation could also cover her admission to that Member State’s general educational, apprenticeship and vocational training courses according to Professor Steve Peers.

Secondly, unfortunately, neither the Court nor the AG elaborate on which parental rights K.D.K is entitled to as a non-EU citizen but as the ‘spouse’ of one. The AG notes that preventing K.D.K  from being recognized as a parent would exclude her from “all the parental duties requiring proof of parental status […], medical decisions or any type of administrative procedure on behalf of the child”. Indeed, the fundamental rights granted by the European Union on many of these issues could vary greatly depending on whether they fall partially inside or outside of the EU’s competences.

(For instance, as the EP Parliament’s study points out, if the legal parent that dies, ‘the child becomes an orphan and it is then up to the family of the legally recognised parent or, in the absence of that, the State, to determine whether the non-recognised parent will even be allowed to maintain links with the child or, ideally, be recognised as the child’s parent. The child, also, does not have any (legal) ties with the family of origin of the parent who is not legally recognised as a parent. Hence, the failure to legally recognise the parent-child relationship creates uncertainty and, with it, insecurity both for the parents and the child as it, in effect, denies their relationship’.)

Her rights as a ‘spouse’ of an EU citizen are also limited. As the EP study found with regards to the implementation of the Coman case: ‘the CJEU does not yet require [the Member State of origin] to recognise a same-sex married couple […] for instance in relation to family, tax, social security, pensions, inheritance, citizenship/nationality, and medical law, e.g. hospital visitation and consultation’.

Finally, as noted by ILGA’s Head of Litigation Arpi Avetisyan: ‘implementation is the crucial part, which often is also the difficult and time-consuming one.  […] In practice the referring court in Bulgaria will have to apply the CJEU judgment and the family will continue the process in Bulgaria. It can also mean further litigation, as it happened in the Coman case […], however in short – if Bulgaria or other countries that don’t recognise same-sex unions refuse to implement the CJEU judgment, the European Commission can take legal action – namely infringement procedures. Just to reiterate, the Court specifically mentioned that MS cannot rely on protection of national identity (i.e. non-recognition of same-sex unions) to refuse the child and her family their rights to free movement’. 

Conclusions

This landmark ruling fills a series of gaps with regards to LGBTIQ* rights, freedom of movement and the protection of ‘family life’ and will likely serve as inspiration for the Commission’s upcoming proposal for a horizontal legislative initiative to support the mutual recognition of parenthood between Member States announced in its LGBTIQ Equality Strategy 2020-2025 the 12 November 2020.

According to the EP Study, said Commission proposal could go even beyond the present ruling and ‘on the legal bases of Articles 18, 21(2), 46, 50(1), and 59(1) TFEU, require[e] all Member States to recognise, for all purposes of national law […] the adults mentioned in a birth certificate issued in another Member State as the legal parents of the child mentioned in that birth certificate, regardless of the sexes or the marital status of the adults’.

This, the EP Study believes, ‘will ensure that when a rainbow family moves, the familial ties among the members of the family – as legally established and reflected in a birth certificate issued by another Member State – will automatically be recognised in the host Member State for all purposes of national law (including family reunification under Directive 2004/38)’.

It’s important to note that, with regards to issues of cross-border mobility relating to gender identity, the Court has not yet had the opportunity to rule on the rights of parental couples where one or both parents are transgender or non-binary. A 2020 report from Transgender Europe (Karsay) notes that - in addition to the obstacles discussed above - these couples suffer from additional obstacles to freedom of movement and recognition of parental bond. For example, the absence or bureaucratic complexity of the legal procedures for gender recognition can also preclude the recognition of marriage, the birth certificate and the filiation relationship between parents and children.

It is also worth recalling that several interesting cases concerning the cross-border recognition of LGBTIQ* couples and families are still pending before the CJEU and the ECtHR.

With regards to the legal recognition of the right to marry of same-sex couples, three appeals have been registered before the ECtHR, two against Poland (1, 2), the other against Romania. The first two cases concern same-sex couples to whom the Polish authorities refused to register their marriage (celebrated abroad), thus depriving them of the rights normally recognized to married couples in Poland. The third case is an appeal presented by the Coman-Hamilton couple, applicants of the CJEU Coman ruling referred to above. With this appeal currently pending, the couple considers the protracted refusal of the Romanian authorities to recognize their marriage and its legal effects as a violation of the right to marry (Article 12 of the ECHR) and discrimination due to sexual orientation (Article 14) read in conjunction with articles 6, par. 1, 8, 12 and 13 of the ECHR).

With regard to the rights of same-parent couples in cross-border situations, the ECtHR will be called upon to rule on the case of a couple challenging Poland for the non-recognition of the civil union and the birth certificate of the child born in England (NELFA).  

Photo credit: Bjoertvedt, via wikicommons 

The considerable contribution of British lawyers to EU (migration) law

 

Kees Groenendijk, Professor Emeritus, Radboud University Nijmegen, Netherlands.

The final sentence of press release 10/20 on the consequences of the UK’s withdrawal from the EU for the Court of Justice reads: “The Court of Justice pays tribute to the major contribution of all its former British members to European integration in general and to the case-law of the Court of Justice and the General Court in particular.” After all dramatic statements on the behaviour of British politicians during the 47 years the United Kingdom was a Member State of the EEC and the EU, it may be right to take a minute to consider the British contribution to EU law, and EU migration and free movement law in particular.

Together with their Irish colleagues, the five British judges and the five British advocates-general who were members of the Court since 1973 with their experience as practising common law lawyers unmistakably contributed to the gradual development of that Court, modelled in the 1957 Treaty of Rome after the French Conseil d’Etat, towards a more open and dynamic court. The President of the Court in his speech at the farewell ceremony for the last British judge praised the British members for their pragmatism, common sense and their inimitable sense of humour. He also recalled that the Court only after the arrival of the British and Irish judges started to cite previous case-law in its judgments “because such citations did not necessarily form part of the legal traditions of the six original Member States” – though without adopting a strict rule of stare decisis.

The British judges and advocates-general

Francis Jacobs, the longest serving advocate-general (1988-2006), in his conclusions frequently and ardently pleaded for the protection of human rights and of individual rights in Community law, even if his pleas were not always immediately accepted by the Court (Fordham I.L.J (29) 2005, p. 690-715). His handbooks contributed to Community law being taken serious in the UK and elsewhere inside and outside Europe – among others The European Convention on Human Rights (Oxford UP 1975), The Court of Justice of the European Communities (Sweet & Maxwell 1977) and The Sovereignty of Law: the European Way (Cambridge UP 2007).

The first British judge, John Mackenzie Stuart, born, advocate and judge in Scotland, served 16 years in Luxembourg. As President of the Court he stimulate the establishment of the General Court, to which part of the Court of Justice’s tasks were transferred. His successor, Gordon Slynn, previously served seven years as Advocate-General. Judge Slynn’s successor David Edward, the second Scottish judge, at the occasion of the farewell of his successor wrote an interesting and topical essay entitled “EU and the Separation of Member States” on separatist [secessionist?] movements in Catalonia, Scotland and Flanders (Fordham I.L.J. (36) 2012, p. 1-18).

The penultimate British judge, Konrad Schiemann, was born in 1937 in Berlin. He survived the RAF bombardments on that city. Shortly after the War he migrated as an orphan to family in London. His colleagues at the Court of Appeal at his appointment in the Court in 2004 asked him what for heaven’s sake he was going to do in Luxembourg. Possibly the thrust of his answer was given in a speech in 2012 under the title The EU as a Source of Inspiration: in 1957, the year the EEC-Treaty was signed and twelve years after the end of the Second World War, displaced persons were still living in camps. The last DP camp in Western Europe closed in 1959. Judge Schiemann was aware of the EU as a guarantee against the human misery and disruption of war.

Among lawyers on the continent the last British A-G, Eleanor Sharpston, is known for her original and lucid conclusions. Her conclusion in the Vethanayagam case (C-680/17) case clearly illustrated that the Court could have chosen for an interpretation of the clause on remedies in the Visa Code which would have supported the rights of many visa applicants and their effective remedy against a visa refusal rather than allow Member State to impede access to such remedy. The UK government proposed to continue Sharpston’s tenure during the transitional period after Brexit during which, there would no longer be a British judge in the Court of Justice, whilst it may still rule on references of UK courts on free movement rights of Union nationals in the UK on the basis of the Withdrawal Agreement. But Barnier, on behalf of the EU, was uncompromising [unyielding?]. After the appointment of a Greek successor on her chair by the 27 remaining Member States in September 2020, she started cases against the Council and the Member States before the General Court which within a few weeks ingloriously ended in her own Court, illustrating that divorce always hurts.

In his farewell address the last British judge, Christopher Vadja, son of a Hungarian (refugee?) father and a German mother, reminded that the UK soon after it joined the EU recognized the important role of the Court of Justice for the development of EU law. The judgment in Defrenne v. SABENA (C-43/75) where the Court held the clause on equal pay for men and women in the EEC-Treaty to be directly applicable, provided an early lesson. Between 1973 and 2016 (the year of the Brexit referendum) the UK intervened in 281 cases in support of one of the parties and presented observations in 718 preliminary references from other Member States, more than any other Member State. “This policy of active engagement with the Court was to the benefit not just of the UK, the Court and the development of European law generally but also of many generations of English barristers, including myself, who were instructed to represent the UK.” One could add that his UK tradition contrasts with the practice of other States entrusting only a limited group of government officials with the representation in Luxembourg, thus restricting the distribution of knowledge of Union law among their national bar.

Until the mid-1990s during the oral hearings the lawyers would read out their pleadings and then go home. The experience of the last British judge in the General Court: “I recollect sad hearings from the old times in Luxembourg when days of preparation and hours of pleadings elicited not a single question.” (….) “[UK] judges are accustomed to test propositions verbally by asking provocative questions.” The British members stimulated their colleagues to put question to the parties. That tradition did not end with the departure of the UK: see a report on the Grand Chamber hearing on 12 October 2020 in the reference by a Dutch court on the independence of Polish courts and the European Arrest Warrant (C-354/20 PPU and C-412/20 PPU).

Judge Vadja also pointed to the limited public access to the hearings of the Court the hearing of the Wightman case on the question whether a Member State had the right to unilaterally revoke its Article 50 notification to withdraw from the EU a maximum of 300 persons could be present in the Grand Salle in Luxembourg. He contrasted this with the 300,000 persons who viewed the first day of the proceedings before the UK Supreme Court on that court’s live stream of the first Miller case on the equally important question whether the Article 50 notification required parliamentary approval and the more than 12 million views of the hearing before the UK Supreme Court of the second Miller case on the prorogation of the UK Parliament. Implicitly, he stressed the importance of the adage ‘Justice should be seen to be done’. Judge Vadja concluded his comparison with: “For my part, I look forward to the day when I can watch my former colleagues in action from the comfort of a sofa anywhere in the world.”

Common law principles, common history and current practice in Luxembourg

The President of the General Court in his address to his departing British colleague Ian Forrester stressed the important contribution of the common lawyers in the court in emphasising  the need for due process and procedural fairness. In his words: “Due process should prevail, even in terrorist cases. As Ian told us repeatedly, due process not only serves the cause of the defendant, but also the interest of the administration, for the very simple reason that procedural safeguards lead to better decision making. (…)  [T]he common law tradition adds a specific procedural dimension to the concept of fairness: the executive is a party before the judge as any other party. There is no reason why public authorities should, as a rule, benefit from privileged procedural positions, either as an appellant or as a defendant. This also applies when it comes to issues like access to evidence used in court proceedings.”

Judge Forrester, also from Scotland, started his farewell address with a short history lesson in French:

“Je vais vous parler de l’histoire, du droit européen, et de notre cour.  Mon père est né en 1899 et a fait l’entrainement d’un officier d’artillerie mais n’a jamais été déployé en France.  Un oncle a servi en Gallipoli.  Un cousin est mort en Birmanie. Une histoire familiale assez typique.  Nous avons tous rencontré ceux aujourd’hui fort âgés qui ont des témoignages étonnants de guerre et de conflit.  Deux juges de la Cour de Justice ont constaté qu’ils s’opposaient lors de la même bataille en Italie pendant notre dernière guerre civile européenne.  L’ancêtre d’un autre juge était soldat dans la bataille de Waterloo.  Un collègue me disait juste après le référendum en 2016 que ses deux grands-pères étaient soldats sur les deux côtés lors de la Bataille de la Somme.  Robert Schumann, fondateur, est né en Alsace-Lorraine, soldat allemand pendant la première guerre, français pendant la deuxième. Les guerres ont marqué notre continent.”

Judge Vadja used the occasion of his departure to give outsiders a look in the kitchen in Luxembourg. In an extensive interview he gave an insight in the work of a judge and the processing of cases inside the Court of Justice from the distribution of cases till the drafting of a judgment, including useful advice for lawyers pleading before the Court.

The amicus curiae and the independence of Polish judges

Less than two months after Brexit, the Court of Justice was confronted with the typical Anglo-Saxon legal concept of the amicus curiae, the expert outsider who upon request of the judge or on his own initiative provides the judge with relevant information for making her decision. In the ECtHR, which from its inception had more common law influence, the amicus curiae has a considerable history, codified in rules on third party intervention in Article 36(2) ECHR and Article 44(3) of the ECtHR Rules of Procedure. UNHCR, Amnesty International and Human Rights Watch, among others, regularly act as amicus curiae in proceedings in Strasbourg.

In the closed system of participants in proceedings before the Court of Justice the amicus curiae until recently was unknown. Its absence forces UNHCR to publish its observations on questions of interpretation of EU asylum instruments pending before the Court of Justice in notices distributed on the internet and in that way reaching the Court – or alternatively, produced as an annex to the observations of the lawyer of the asylum seeker (see fn 13 of the AG’s conclusion in Diakité, C-285/19).

The Grand Chamber of the Court in its judgment of 26 March 2020 in two joined references by Polish courts on the serious threats to the independence of judges in Poland, summarizes the main points of three letters of the Polish Ombudsman to the Court. The Ombudsman, who was not a party in those cases, in his letters pointed among others to the recent Muzzle Law, which considerably strengthens the new disciplinary regime for judges. That law was introduced with the aim to nullify the effet of the AK and others judgment of the Court of 19 November 2019 on the lack of independence of  new disciplinary chamber (“Chamber of Extraordinary Control and Public Affairs”) of the Polish Supreme Court. The Ombudsman referred to  the A-G’s conclusion that the Court did not have sufficient factual and legal material to enable it to rule on those requests. He described the growing number of disciplinary proceedings and administrative measures and the adoption of disciplinary measures against judges. Further, the Ombudsman informed the Court of Justice that the Polish National Prosecutor recently brought an action before the disciplinary chamber of the Supreme Court to waive immunity for the judge who made the reference for a preliminary ruling in one of the joined cases.

The Court of Justice noted that its Statute and Rules of Procedure do not provide for the interested parties referred to in Article 23 of the Statute to submit observations in response to the A-G’s Opinion. But it also observed that the Court “may at any time, after hearing the Advocate General, order the reopening of the oral procedure in accordance with Article 83 of its Rules of Procedure, in particular if it considers that it lacks sufficient information, or where a party has, after the close of that part of the procedure, submitted a new fact which is of such a nature as to have a decisive influence on the decision of the Court, or where the case must be decided on the basis of an argument which has not been debated between the interested persons.” The Court concluded that in this case it had sufficient information and that the new facts relied on by the Ombudsman “are not of such a nature as to have a decisive influence on the decision which the Court is called upon to give” (paras 27-30 of the judgment). The Court held the two references inadmissible because interpretation of the EU law provisions concerned was not necessary for deciding the disputes in the main procedures. After reaching that conclusion, however, the Court extensively reasoned that not being exposed to disciplinary proceedings or measures for bringing a matter before the Court, which is exclusively within their jurisdiction, constitutes a guarantee that is essential to judicial independence (paras 54-59 of the judgment).

Even, if the information provided by the Ombudsman did not have “decisive influence” on the outcome of the case, apparently, the Court considered that information to be relevant. The reference to Article 83 of the Rules of Procedure may well be the first step in the direction of the amicus curiae in Luxembourg. A month later, in April 2020, the Court of Justice ordered Poland to suspend pending disciplinary cases and stop bringing new case before the disciplinary chamber (C-791/19). That order was ignored by the Polish authorities and the disciplinary chamber.

Tenacious negotiators

At the Hohenheimer Tage zum Migrationsrecht, the annual meeting of German immigration, I often heard German friends complain about the tenacious  UK lawyers in the Council Working Groups during the negotiations on free movement, social rights or some of the asylum instruments. My standard reply was that the UK negotiators may be persistent, but once an EU instrument is adopted, the UK, generally, applied it far better than the Member State who simply copy past the instrument in their national law and leave every else unchanged in practice.

A sad example of this persistent negotiating is the reduction of the protection against expulsion of Union citizens on public order grounds. In 2004 the Council unanimously agreed to reinforce that protection in the Articles 27 and 28 of Directive 2004/38, adopted on the day before the accession of ten new Member States to the Union. Since 2008, the UK repeatedly pleaded in the EU Council of Ministers to give Member States more room for expulsion after a criminal conviction. Sometimes other West-European Member States joined this British plea (see Council document 15903/08 of 8 November 2008 and Council document 10313/13 of 31 May 2013). Each time such proposals met with opposition from the Commission and got insufficient support in the Council.

In the 2016 pre-Brexit-referendum-deal between PM Cameron and the European Council (discussed here), that Council agreed and the Commission promised to propose a considerable ‘softening’ of the public order clauses in Directive 2004/38, in case the UK remained in the EU. Finally, the UK achieved its aim during the Brexit negotiations. For EU nationals in the UK and for British nationals in the EU with residence rights under the EU-UK Withdrawal Agreement the protection against expulsion on public other grounds will be reduced to the level of the national legislation for conduct occurred after 2020 (Article 20 of the withdrawal agreement: see discussion here). This full renationalisation clearly limits the acquired rights of the millions of Union citizens who used their free movement rights to and from the UK before 2021. 

British courts, lawyers and legal academics

The references by British courts made an important contribution to the development of the rules on free movement of Union citizens. A quarter of all CJEU judgments in that field in 2008-2019 were given in answer to preliminary references by British judges. Especially, their questions concerning the right of permanent residence provide for in Directive 2004/38 (Dias, Alarape, Onuekwere and Lounes, discussed here) and on the admission of durable but unregistered partners of Union citizens (Rahman, Banger and S.M., discussed here) have produced some clarity and focus attention in several Member States on their rights. A bill implementing the last three judgments is currently pending in the German Bundestag. Almost half of the judgments of the Court of Justice concerning the rights of third-country national family members of EU citizens were given in answer to questions from British courts (V. Passalacqua, Legal mobilisation and the construction of EU migration law, Florence 2020, diss EUI, p. 8).  

Many of those questions originated in the minds of active UK lawyers, supported by their Immigration Law Practitioners’ Association (ILPA). Their activities also resulted in the provision on self-employed Turkish citizens in the EEC-Turkey association law were taken seriously (in Savas, Tum & Dari and Tural Oguz) by the Court and, subsequently in Member States. The AIRE Centre (Advice on Individual Rights in Europa) demonstrated how an NGO can stimulate test cases in Luxembourg. Since 1993, this London based organisation provided legal assistance and acted as party, intervenor or amicus curiae in more than hundred cases on human rights or migration before both European courts (for instance, the AIRE Centre acted as amicus curiae in the case on the border gate around Melilla, which resulted in ECtHR 13 February 2020, app. 8675/15 (N.D. and N.T. v. Spain), see point 100 and 160-163), and among those are ten cases before the Court of Justice on free movement or on Dublin since 2010.

Leading handbooks on EU migration law or on the EU Charter of Fundamental Rights written or edited by UK academics such as Cathryn Costello, Elspeth Guild and Steve Peers, will be gratefully used by lawyers and judges in the EU long after Brexit. The influence of almost five decades of membership of the same legal order cannot be brushed away, however gladly some politician would desire.

The greater the scope of the level playing field agreed in the future agreements between the EU and the UK, the greater the chance that EU law will remain a voluntary or compulsory subject at British law faculties, if only because people, businesses and institutions in the UK will continue to have to deal EU law rules. It will be for the lawyers in the remaining Member States to honour and profit from the contributions of their British colleagues, until the time is right for a new rapprochement.

Photo credit: Unlock

Analysis 2 of the Revised Brexit Withdrawal Agreement: Transition Period

Professor Steve Peers, University of Essex

With a revised version of the Brexit withdrawal agreement now on the table, this is an opportune time to update my previous blog posts on the first version of the withdrawal agreement. The first analysis was an overview of the revised agreement, and this blog post (updating my spring 2018 post) concerns the transition period in the agreement. (The revised deal comprises a revised Protocol on the Irish border – for a full text of the revised withdrawal agreement following this change, see here – and a revised political declaration on the future relationship.) Update: Subsequent blog posts analyse the provisions in the revised withdrawal agreement on dispute settlement, citizens' rights and the revised political declaration on the future relationship between the UK and the EU.

This blog post explains the overall context of the transition period and then annotates the text. I have not repeated some of my analysis of the drafting history, but that can be found in the 2018 version of this post.  

The basic idea of the transition period is that substantive EU law (including newly adopted measures) continues to apply to the UK until the end of 2020 – although this date could be extended by one or two years. However, there are exceptions to this general rule, as explained below. After the end of that period, the relationship between the EU and UK ceases, unless new treaties have been negotiated (with the exception of Northern Ireland, which is subject to special rules). 

Structure of the withdrawal agreement

Part One of the withdrawal agreement sets out the “Common Provisions”. These deal with basic issues like definitions and territorial scope.

Part Two of the withdrawal agreement deals with citizens’ rights. It will mostly not apply until the end of the transition period, and free movement law will continue to apply during the transition period.

Part Three of the agreement sets out “separation provisions”. These deal with issues like what happens to European Arrest Warrants pending at the end of the transition period. This part will largely apply as from the end of that period.

Next, Part Four sets out the rules on the transition period as such. These provisions are annotated below.

Part Five concerns the financial settlement. It incorporates the earlier agreement that the UK is takes part in the EU’s financial rules until the end of the transition period. (The end-2020 cut-off date of the transition period matches the end of the current EU budget cycle).

Part Six sets out “Final Provisions”. Some of this applies immediately from Brexit Day, and some from the end of the transition period. For instance, the rules on ECJ jurisdiction over EU citizens apply, for the most part, from eight years after the end of the transition period.  So does the clause on a new authority to help guarantee EU citizens’ rights, which might be shut down at the end of that same eight-year period. 

There will also be Protocols on Irish border issues and UK bases in Cyprus, both of which would mostly apply from the end of the transition period; the former was revised as part of this week’s ‘deal’.

I aim to update my other blog posts on the previous version of the withdrawal agreement (on citizens’ rights and dispute settlement) and on the related political declaration shortly.

Barnard & Peers: chapter 27

Photo credit: Der Speigel

PART FOUR

TRANSITION

Article 126

Transition period

There shall be a transition or implementation period, which shall start on the date of entry into force of this Agreement and end on 31 December 2020.

Comments: The EU preferred the term ‘transition’, while the UK preferred ‘implementation’. As a compromise, both terms are used here, although the withdrawal agreement refers solely to a ‘transition’ period in all other Articles of the withdrawal agreement.

The key issues are how the transition period relates to the rest of the agreement, and whether it can be extended. See the discussion above on the first issue, and Article 132 below on the latter issue.

The end date is convenient for the EU27 side as it corresponds with the end of the current multi-annual EU budget cycle. In the revised withdrawal agreement, the ‘backstop’ for the entire UK is removed, creating a ‘cliff edge’ at the end of the period except as regards Northern Ireland.

Note that Article 127(2), discussed below, provides conversely for the transition period to be potentially curtailed early as regards foreign policy issues.

Article 127

Scope of the transition

1. Unless otherwise provided in this Agreement, Union law shall be applicable to and in the United Kingdom during the transition period.

However, the following provisions of the Treaties and acts adopted by the institutions, bodies, offices or agencies of the Union shall not be applicable to and in the United Kingdom during the transition period:

(a) provisions of the Treaties and acts which, pursuant to Protocol (No 15) on certain provisions relating to the United Kingdom of Great Britain and Northern Ireland, Protocol (No 19) on the Schengen acquis integrated into the framework of the European Union or Protocol (No 21) on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, or pursuant to the provisions of the Treaties on enhanced cooperation, were not binding upon and in the United Kingdom before the date of entry into force of this Agreement as well as acts amending such acts;

(b)  Article 11(4) TEU, point (b) of Articles 20(2), Article 22 and the first paragraph of Article 24 TFEU, Articles 39 and 40 of the Charter of Fundamental Rights of the European Union, and acts adopted on the basis of those provisions. 

Comments: Union law is defined in Article 2. Sub-paragraph 1(a) keeps the UK’s existing opt outs from the single currency, Schengen, Justice and Home Affairs (JHA) law and enhanced cooperation (a system where some Member States go ahead and adopt EU law without the others), except where the UK opted in to EU laws in these areas before Brexit day. Paragraph 4 says more about enhanced cooperation, while para 5 says more about JHA.

Sub-paragraph 1(b) excludes the Treaty rules and legislation related to the European citizens’ initiative (on that process, see the case law discussed here) and also voting and standing for office in the European Parliament and local government. There is no transitional clause on the situation of those EU27 citizens who were elected to local government in the UK (and vice versa) before Brexit day, even in the “Separation Provisions” of Part Three of the withdrawal agreement. Conversely other EU citizenship provisions will logically still apply. This includes the “Ruiz Zambrano” case law on UK citizen children with non-EU parents, which I discussed here.

2. In the event that the Union and the United Kingdom reach an agreement governing their future relationship in the area of the Common Foreign and Security Policy and the Common Security and Defence Policy which becomes applicable during the transition period, Chapter 2 of Title V of the TEU and the acts adopted on the basis of those provisions shall cease to apply to the United Kingdom from the date of application of that agreement.  

Comments: There are also provisions on foreign policy in paragraph 7 and in Article 129(6) and (7).

This is the only area where the transition period contemplates a potential early end to the transitional period. By contrast, Theresa May’s Florence speech referred to the possibility of ending the transition period early for a number of issues at different times. An early end to the transition period in this field would avoid the awkward situation where the UK becomes bound by foreign policy measures which it could have vetoed if it were a Member State, although note that Article 129(6) preserves that possibility in certain circumstances. It would also end a possibility for linking defence issues to trade issues, although the UK policy in the Florence speech (and since) was not to insist upon such a link. A later speech by Theresa May (discussed here) went into more detail on what a “future relationship” treaty in this area might include.

Legally it is questionable whether the UK and EU would actually be constrained by the withdrawal agreement if they wanted to sign a treaty replacing these rules in other fields of EU law during the transition period.

3. During the transition period, the Union law applicable pursuant to paragraph 1 shall produce in respect of and in the United Kingdom the same legal effects as those which it produces within the Union and its Member States, and shall be interpreted and applied in accordance with the same methods and general principles as those applicable within the Union.

4. The United Kingdom shall not participate in any enhanced cooperation:

(a)  in relation to which authorisation has been granted after the date of entry into force of this Agreement; or

(b)  within the framework of which no acts were adopted before the date of entry into force of this Agreement.

Comments: On “enhanced cooperation”, see also para 1(b) of this Article, discussed above. This clause is particularly relevant to the proposal on the financial transaction tax, which is subject to the enhanced cooperation process (without UK participation) but where there is no agreement yet (see more on the background to the tax proposal here). In light of this provision, the suggestion that the UK might somehow become bound as such by the tax during the transition period is frankly scaremongering. There is a risk that the tax would have some extraterritorial effect upon the City of London, but that risk would equally exist if the UK were still a Member State, since it could not veto an enhanced cooperation measure that it was not participating in. It could also have such an effect if the UK were no longer even a “transition” ex-Member State.

5. During the transition period, in relation to measures which amend, build upon or replace an existing measure adopted pursuant to Title V of Part Three of the TFEU by which the United Kingdom is bound before the date of entry into force of this Agreement, Article 5 of Protocol (No 19) on the Schengen acquis integrated into the framework of the European Union and Article 4a of Protocol (No 21) on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice shall continue to apply mutatis mutandis. The United Kingdom shall not, however, have the right to notify its wish to take part in the application of new measures pursuant to Title V of Part Three of the TFEU other than those referred to in Article 4a of Protocol No 21. 

In order to support continuing cooperation between the Union and the United Kingdom, under the conditions set out for cooperation with third countries in the relevant measures, the Union may invite the United Kingdom to cooperate in relation to new measures adopted under Title V of Part III TFEU.

Comment: This issue is also the subject of a speech by Theresa May. For an analysis of the speech and a proposed “future relationship” treaty in this area, see here.

This provision means that the UK can opt in to new JHA laws amending JHA laws which it is already bound by. Note that the UK has already opted out of the ‘Dublin IV’ proposal on allocation of asylum seekers, so the suggestion that it could be bound by that law during the transitional period is pure scaremongering. On the other hand, it cannot opt in to new JHA measures which do not amend JHA laws which it is already bound by. At most it can seek to cooperate with the EU in those measures as a non-EU country, on the same basis as other non-EU countries.

At the end of the transition period, the winding up of cooperation in this field is dealt with by the separation provisions in the agreement, on criminal law and civil litigation. There is no provision for how to deal with pending proposals to transfer responsibility for asylum seekers (the “Dublin III” Regulation) at the end of that period.   

One provision relevant to this field appears in Article 185 of the treaty. It provides for the possibility, as from Brexit Day, of refusing to surrender a State’s own citizens under the European Arrest Warrant (EAW) law:

When making the written notification referred to in the first paragraph, the Union, in respect of any Member State which has raised reasons related to fundamental principles of national law of that Member State, may declare that, during the transition period, in addition to grounds for non-execution of a European arrest warrant referred to in Framework Decision 2002/584/JHA, the executing judicial authorities of that Member State may refuse to surrender its nationals to the United Kingdom pursuant to a European arrest warrant. In such a case, the United Kingdom may declare, no later than 1 month after the receipt of the Union's declaration that its executing judicial authorities may refuse to surrender its nationals to that Member State.

This provision raises some key questions, in particular what separation rule will apply to a European Arrest Warrant pending on Brexit Day which is covered by this declaration, and whether some other obligation applies instead of surrender (extradition treaties often contain an “extradite or prosecute” rule, although the EAW law also applies to those who have been convicted already; in that case the obvious course would be to transfer the sentence using the applicable EU rules). Note that the majority of those surrendered are not nationals of the State surrendering them; Germany could still return UK citizens to the UK, for instance.

6. Unless otherwise provided in this Agreement, during the transition period, any reference to Member States in the Union law applicable pursuant to paragraph 1, including as implemented and applied by Member States, shall be understood as including the United Kingdom.

7. By way of derogation from paragraph 6:

(a) for the purposes of Articles 42(6) and 46 TEU and of Protocol (No 10) on permanent structured cooperation established by Article 42 of the Treaty on European Union, any references to Member States shall be understood as not including the United Kingdom. This shall not preclude the possibility for the United Kingdom to be invited to participate as a third country in individual projects under the conditions set out in Council Decision (CFSP) 2017/2315 on an exceptional basis, or in any other form of cooperation to the extent allowed and under the conditions set out by future Union acts adopted on the basis of Articles 42(6) and 46 TEU;

(b) where acts of the Union provide for the participation of Member States, nationals of Member States or natural or legal persons residing or established in a Member State in an information exchange, procedure or programme which continues to be implemented or starts after the end of the transition period, and where such participation would grant access to security related sensitive information that only Member States (or nationals of Member States, or natural or legal persons residing or established in a Member State) are to have knowledge of, in such exceptional circumstances the references to Member States in such Union acts shall be understood as not including the United Kingdom. The Union shall notify the United Kingdom of the application of this derogation;

(c) for the purposes of the recruitment of officials and other servants of the institutions, bodies, offices or agencies of the Union, any references to Member States in Articles 27 and 28(a) of the Staff Regulations and in Article 1 of Annex X thereto and in Articles 12, 82 and 128 of the Conditions of Employment of Other Servants of the European Union, or in the relevant provisions of other staff rules applicable to those institutions, bodies, offices or agencies, shall be understood as not including the United Kingdom. 

Comments: Paragraph 7(a) concerns “permanent structured cooperation” in the area of defence, from which the UK decided to opt out when most Member States decided to trigger that process recently (in the 2017 Council Decision referred to in the text of para 7(a)). The text sets out a compromise: the UK continues its opt out but, like JHA measures, can cooperate as a non-EU country in this and other future defence measures. Note that following paragraph 2 there may be an early EU/UK treaty in this area which would likely address this issue.

It is often falsely claimed that the withdrawal agreement ties the UK into an “EU army”: this provision makes clear that this is not the case.

Article 128

Institutional arrangements

1. Notwithstanding Article 127, during the transition period Article 7 shall apply. 

Comments: Article 7 states that the UK should be regarded as a Member State when Union law (defined in Article 2(a)), refers to Member States, except as regards EU institutions, governance of agencies, or voting in the committees that oversee the adoption of implementing measures by the Commission.

In effect, although Article 2(b) implicitly defines the UK as not a Member State, the UK will remain a de facto Member State during the transition period for the purposes of substantive EU law, but not institutional EU law.

Note that paragraph 5 is an express derogation from paragraph 1, and that Articles 129 and 130 lay out specific rules on external action and fisheries.

2. For the purposes of the Treaties, during the transition period, the parliament of the United Kingdom shall not be considered to be a national parliament of a Member State, except as regards Article 1 of Protocol (No 1) on the role of national parliaments in the European Union and, in respect of proposals which are in the public domain, Article 2 of that Protocol.

Comments: The exception for Articles 1 and 2 of the Protocol on national parliaments means that consultation documents and proposals for EU legislation will still be sent to the UK parliament. However, the rest of that Protocol will no longer apply to the UK parliament: it concerns national parliament objections (Article 3); a waiting period (Article 4); Council agendas (Article 5); simplified Treaty amendments (Article 6); the Court of Auditors (Article 7); bicameral parliaments (Article 8); and COSAC, the joint EP/national parliament body (Title II).

It arguably is implicit that if the UK is not part of the EU institutions, there is no requirement to consult the UK’s national parliament on proposed EU measures. But even if there is no longer a legal obligation to do so, it is hard to see what harm would be caused by consulting the UK parliament, or what legal rule would prevent the EU agreeing to do so outside the context of the formal role for national parliaments of Member States set out in the Treaties. Ultimately it seems that there was a compromise which partly accepts the case for a continued link with the UK parliament during the transition period.

3. During the transition period, provisions of the Treaties which grant institutional rights to Member States enabling them to submit proposals, initiatives or requests to the institutions shall be understood as not including the United Kingdom.

Comments: A footnote here states “This should in particular concern Articles 7, 30, 42(4), 48(2) – (6) and 49 TEU and Articles 25, 76(b), 82(3), 83(3), 86(1), 87(3), 135, 218(8), 223(1), 262, 311 and 341 TFEU.”  This exclusion follows from the removal of the UK from the institutional law of the EU.

4. For the purposes of participation in the institutional arrangements laid down in Articles 282 and 283 TFEU and in Protocol (No 4) on the Statute of the European system of central banks and of the European Central Bank with the exception of Article 21(2) of that Protocol, during the transition period, the Bank of England shall not be considered to be a national central bank of a Member State.

Comments: The exception for Article 21(2) of the ECB Protocol means that the Bank of England can still act as a fiscal agent for those buying government debt without this violating the Treaties’ no-bailout clause. Arguably it’s implicit that if the UK is not part of the EU institutions, it follows that the Bank of England does not have the status of a national central bank in its relations with the ECB.

5. By way of derogation from paragraph 1 and from Article 6, during the transition period, representatives or experts of the United Kingdom, or experts designated by the United Kingdom, may, upon invitation, exceptionally attend meetings or parts of meetings of the committees referred to in Article 3(2) of Regulation (EU) No 182/2011, of Commission expert groups, of other similar entities, or of bodies, offices or agencies where and when representatives or experts of the Member States or experts designated by Member States take part, provided that one the following conditions is fulfilled:

(a) the discussion concerns individual acts to be addressed during the transition period to the United Kingdom or to natural or legal persons residing or established in the United Kingdom;

(b)  the presence of the United Kingdom is necessary and in the interest of the Union, in particular for the effective implementation of Union law during the transition period.

During such meetings or parts of meetings, the representatives or experts of the United Kingdom or experts designated by it shall have no voting rights and their presence shall be limited to the specific agenda items that fulfil the conditions set out in point (a) or (b).  

Comments: Note that a statement by the Commission commits itself to issue a guidance document on how to apply this rule consistently in practice. Regulation 182/2011 sets out general rules for Member States’ participation in committees which govern the Commission’s use of implementing powers.

As in many other aspects of the transition period rules, it is questionable whether it is really necessary to limit the UK’s purely consultative role to this extent. Certainly there is only a weak argument that it is legally required.

6. During the transition period, the United Kingdom shall not act as leading authority for risk assessments, examinations, approvals or authorisations at the level of the Union or at the level of Member States acting jointly as referred to in the acts and provisions listed in Annex VII.

Comments: It is not so obviously implicit that the UK’s exclusion from the EU institutions means that it cannot have a role as lead authority in risk assessment et al. Put another way, this is arguably an issue of EU substantive law – where the UK will in effect remain a Member State during the transition period – rather than EU institutional law, where it will not. If the EU can trust the UK to implement EU law, why not accept that it can have a role in risk assessment, et al?

7. During the transition period, where draft Union acts identify or refer directly to specific Member State authorities, procedures, or documents, the United Kingdom shall be consulted by the Union on such drafts with a view to ensuring the proper implementation and application of that act by and in the United Kingdom.

Article 129

Specific arrangements relating to the Union's external action

1. Without prejudice to Article 127(2), during the transition period, the United Kingdom shall be bound by the obligations stemming from the international agreements concluded by the Union, or by Member States acting on its behalf, or by the Union and its Member States acting jointly as referred to in point (a)(iv) of Article 2.* 

Comments: A footnote states that: “The Union will notify the other parties to these agreements that during the transition period, the United Kingdom is to be treated as a Member State for the purposes of these agreements.”  For the text of the notification which would be issued, see here.

The UK will still be bound to the EU as regards treaties with non-EU states. Logically this applies vice versa and it would have been preferable to spell that out directly. It should follow that individuals can still invoke the direct effect of such treaties (where it exists) in the UK during the transition period (for instance, Turkish citizens with rights under the EU/Turkey association agreement framework).

However, the UK is not bound to non-EU countries to apply such treaties; neither can non-EU countries directly invoke such treaties against the UK.  Since this could in particular affect UK exports, it makes sense for the UK to focus on replicating such treaties: see para 4 below.

The assumption seems to be to hope that a unilateral notification by the EU regarding its customs territory (and other issues) will suffice for non-EU countries, legally and politically. Time will tell if this assumption is correct.

2. During the transition period, representatives of the United Kingdom shall not participate in the work of any bodies set up by international agreements concluded by the Union, or by Member States acting on its behalf, or by the Union and its Member States acting jointly, unless:

(a)  the United Kingdom participates in its own right; or 

(b) the Union exceptionally invites the United Kingdom to attend, as part of the Union's delegation, meetings or parts of meetings of such bodies, where the Union considers that the presence of the United Kingdom is necessary and in the interest of the Union, in particular for the effective implementation of those agreements during the transition period; such presence shall only be allowed where Member States participation is permitted under the applicable agreements.

3. In accordance with the principle of sincere cooperation, the United Kingdom shall refrain, during the transition period, from any action or initiative which is likely to be prejudicial to the Union's interests, in particular in the framework of any international organisation, agency, conference or forum of which the United Kingdom is a party in its own right. 

 Comments: This para explicitly sets out the obligation that would anyway arguably still apply implicitly, since other EU Treaty provisions on sincere cooperation would still be applicable to the UK. The particular relevance of the “sincere cooperation” principle in EU external relations law is that it limits Member States from negotiating treaties; but that issue is explicitly addressed by para 4. Note that the UK would presumably have more freedom to act once any early post-Brexit treaty on EU/UK security and defence cooperation came into force (see Article 127(2) above).

4. Notwithstanding paragraph 3, during the transition period, the United Kingdom may negotiate, sign and ratify international agreements entered into in its own capacity in the areas of exclusive competence of the Union, provided those agreements do not enter into force or apply during the transition period, unless so authorised by the Union.

Comments: This para only applies to “exclusive” competence of the EU, which narrows the limits on the UK’s external action. Note that the exact extent of exclusivity of EU external competence is often disputed and even litigated.

There is no mention of the process of approval of the UK becoming bound by treaties. Note that one of the statements attached to the Council negotiation Directives says that the Council will approve the UK becoming bound by such treaties, in accordance with the usual Treaty rules. 

5. Without prejudice to Article 127(2), whenever there is a need for coordination, the United Kingdom may be consulted, on a case-by-case basis. 

Comments: This paragraph takes account of the UK’s significant foreign policy rule, in particular regarding sanctions, although there is ultimately no specific reference to them. As with para 3, in the foreign policy context the UK would presumably have more freedom to act once any early post-Brexit treaty on EU/UK security and defence cooperation came into force (see Article 127(2) above).

6. Following a decision of the Council falling under Chapter 2 of Title V TEU, the United Kingdom may make a formal declaration to the High Representative of the Union for Foreign Affairs and Security Policy, indicating that, for vital and stated reasons of national policy, in those exceptional cases it will not apply the decision. In a spirit of mutual solidarity, the United Kingdom shall refrain from any action likely to conflict with or impede Union action based on that decision, and the Member States shall respect the position of the United Kingdom.

Comment: This is a significant possibility for the UK not to be bound by an EU measure in this field during the transition period. It reinforces the absurdity of the false claims that the withdrawal agreement would bind the UK to a future “EU army”.

The wording is adapted from two different rules on foreign policy decision-making in Article 31 TEU, although note that the consequence of a UK government declaration here would not be exactly the same as the provisions in the EU Treaty. This would not be a veto as such – since the EU could still adopt the planned act. Rather it would be what the EU calls a “constructive abstention” – the UK would not be bound by what the EU does, but would have to avoid frustrating it.

Note that since Union law applies to the UK during the transition period, this must include Article 275 TFEU, which limits Court of Justice jurisdiction over EU foreign policy measures to cases about sanctions and disputes over EU competence.

The future relationship treaty foreseen in Article 127(2) may make this provision redundant.  

7. During the transition period, the United Kingdom shall not provide commanders of civilian operations, heads of mission, operation commanders or force commanders for missions or operations conducted under Articles 42, 43 and 44 TEU, nor shall it provide the operational headquarters for such missions or operations or serve as framework nation for Union battlegroups. During the transition period, the United Kingdom shall not provide the head of any operational actions under Article 28 TEU.

Comments: The future relationship treaty foreseen in Article 127(2) may make this provision redundant. While this para is consistent with the overall thrust of removing the UK from roles in EU bodies, it is liable to make it harder to run an effective EU defence policy, given the extent of the contribution by the UK military. 

                                                        

Article 130

Specific arrangements relating to fishing opportunities

1. As regards the fixing of fishing opportunities within the meaning of Article 43(3) TFEU for any period falling within the transition period, the United Kingdom shall be consulted in respect of the fishing opportunities related to the United Kingdom, including in the context of the preparation of relevant international consultations and negotiations. 

2. For the purposes of paragraph 1, the Union shall offer the opportunity to the United Kingdom to provide comments on the Annual Communication from the European Commission on fishing opportunities, the scientific advice from the relevant scientific bodies and the proposals from the European Commission for fishing opportunities for any period falling within the transition period.

3. Notwithstanding point (b) of Article 129(2), with a view to allowing the United Kingdom to prepare its future membership in relevant international fora, the Union may exceptionally invite the United Kingdom to attend, as part of the Union's delegation, international consultations and negotiations referred to in paragraph 1 of this Article, to the extent allowed for Member States and permitted by the specific forum.

4. Without prejudice to Article 122(1), the relative stability keys for the allocation of fishing opportunities referred to in paragraph 1 of this Article shall be maintained. 

Comments: Fisheries was a controversial issue during the negotiations on a transition period, although it should also be noted that the deal equally preserves full market access for UK fisheries’ main export market during that period. The catch allocation/market access trade off is going to be central to the future relationship talks with the EU, given the EU’s intention to link these two issues.

If the transition period ends as proposed at the end of 2020, this provision would only be relevant for one year. It could continue for longer if the transition period is extended.

Paras 2 and 3 elaborate further upon the consultations and international negotiations points referred to in para 1, but para 4 is separate: it freezes the catch allocations existing on Brexit day. As such it is a compromise which prevents a possible “grab” of the UK fisheries catch by EU countries during the transition period. 

  

Article 131

Supervision and enforcement

During the transition period, the institutions, bodies, offices and agencies of the Union shall have the powers conferred upon them by Union law in relation to the United Kingdom and to natural and legal persons residing or established in the United Kingdom. In particular, the Court of Justice of the European Union shall have jurisdiction as provided for in the Treaties.

The first paragraph shall also apply during the transition period as regards the interpretation and application of this Agreement.  

Comments: As noted already, “Union law” is defined in Article 2 of the agreement.

ARTICLE 132

Extension of the transition period

1. Notwithstanding Article 126, the Joint Committee may, before 1 July 2020, adopt a single decision extending the transition period for up to 1 or 2 years.*

Comment: Note the requirement that the UK and EU both agree to an extension, and that there is only a single extension permitted. The footnote reads: * “In case of extension, the Union will notify other parties to international agreements thereof.”

2. In the event that the Joint Committee adopts a decision under paragraph 1, the following shall apply:

(a) by way of derogation from Article 127(6), the United Kingdom shall be considered as a third country for the purposes of the implementation of the Union programmes and activities committed under the multiannual financial framework applying as from the year 2021;

(b) by way of derogation from Article 127(1) and without prejudice to Part Five of this Agreement, the applicable Union law concerning the Union's own resources relating to the financial years covered by the extension of the transition period shall not apply to the United Kingdom after 31 December 2020;

(c) by way of derogation from Article 127(1) of this Agreement, Articles 107, 108 and 109 TFEU shall not apply to measures of the United Kingdom authorities, including on rural development, supporting the production of and trade in agricultural products in the United Kingdom up to an annual level of support which shall not be more than the total amount of expenditure incurred in the United Kingdom under the Common Agricultural Policy in 2019, and provided that a minimum percentage of that exempted support complies with the provisions of Annex 2 to the WTO Agreement on Agriculture. Such minimum percentage shall be determined on the basis of the last available percentage by which the overall expenditure under the Common Agricultural Policy in the Union complied with the provisions of Annex 2 to the WTO Agreement on Agriculture. In the event that the period by which the transition period is extended is not a multiple of 12 months, the maximum annual level of exempted support in the year for which the extended transition period covers less than 12 months shall be reduced pro rata;

(d) for the period from 1 January 2021 to the end of the transition period, the United Kingdom shall make a contribution to the Union budget, as determined in accordance with paragraph 3;

(e) subject to point (d) of paragraph 3, Part Five of this Agreement shall not be affected.

3. A decision of the Joint Committee under paragraph 1 shall:

(a) establish the appropriate amount of the contribution of the United Kingdom to the Union budget for the period from 1 January 2021 to the end of the transition period, taking into account the status of the United Kingdom during that period, as well as the modalities of payment of that amount;

(b) specify the maximum level of exempted support, as well as the minimum percentage thereof that shall comply with the provisions of Annex 2 to the WTO Agreement on Agriculture, as referred to in point (c) of paragraph 2;

(c) lay down any other measure necessary for the implementation of paragraph 2;

(d) adapt the dates or periods referred to in Articles 51, 62, 63, 84, 96, 125, 141, 156, 157 and Annexes IV and V to reflect the extension of the transition period.

Comments: EU budget law will not as such apply to the UK in event of an extension, but ad hoc contributions would be negotiated instead. This would likely be a difficult negotiation.