Of Third ‘States’, ‘Countries’ and Other Demons - The CJEU’s Judgment in Case C-632/20 P Spain v Commission (Kosovo)

 

Eva Kassoti, Senior Researcher, CLEER academic co-ordinator, T.M.C. Asser Institute. E-mail: E.Kassoti@asser.nl

Photo credit: Aljabakphoto, via Wikimedia commons - Šar Mountains National Park in Dragaš, Kosovo

On 17th January 2023, the Court of Justice of the European Union delivered its judgment in Case C-632/20 P Spain v Commission (Kosovo) ruling that notwithstanding the EU’s non-recognition of Kosovo as a State, Kosovo may participate in an EU agency, namely the Body of European Regulators for Electronic Communications (BEREC). The judgment is significant since it clarifies the meaning of the concept of ‘third country’ - as including territorial entities which have not been recognized by the EU as sovereign States - and confirms that such entities may participate in EU agencies. The judgment may also have more far-reaching consequences in the light of Kosovo’s 2022 bid for EU membership.

The case is an appeal against the GC’s judgment of 23 September 2020 (T-370/19, for comment see here and here). At first instance, the GC rejected Spain’s complaint to the effect that participation of Kosovo’s National Regulatory Authority (NRA) in BEREC is precluded since the EU has not recognised Kosovo as an independent State and thus, it does not constitute a ‘third country’ within the meaning of Article 35 of the BEREC Regulation. The GC argued that the fact that the TFEU makes reference both to ‘third States’ and ‘third countries’ implies that the latter concept is broader and thus, that it is “clearly intended to pave the way for the conclusion of international agreements with entities ‘other than States’” (T-370/19, para. 30). Spain appealed the GC’s judgment and AG Kokott delivered her Opinion on 16 June 2022 (for comment see here).

This blogpost will focus on what is - arguably - the most important aspect of the judgment, namely how the CJEU treated the question of Kosovo’s participation in an EU agency as a ‘third country’ despite the absence of EU recognition of its (claimed) Statehood. It needs to be noted that the background against which the judgment was given is not only politically laden, since five EU member States oppose Kosovo’s claim to Statehood, but also quite complex from an international law point of view – since the international legal status of Kosovo is unclear and legal opinion is divided (Vidmar, p. 44; see however, Crawford, p. 289). While the CJEU (wisely) refrained from delving into questions of Statehood and recognition, which are closely but not directly linked to the dispute at bar, its (rather terse) pronouncement on the issue at bar shows a reluctance to engage with relevant international legal considerations – something that ultimately detracts from its persuasive force.

 

Summary of the Judgment

Spain’s grounds of appeal boiled down to two main questions: a) whether Article 35 (2) of the BEREC Regulation in conjunction with Article 111 of the EU-Kosovo Stabilisation and Association Agreement (SAA) permit the participation of the NRA of Kosovo in the work of BEREC; and b) whether the Commission enjoyed the institutional competence to adopt the decision on the participation of the NRA of Kosovo in BEREC. In relation to the first question, Article 35 (2) of the BEREC Regulation allows the participation in the agency of ‘third countries’ where those countries have entered into agreements with the EU to that effect. Thus, the interpretation of the concept of ‘third countries’ is key here. More particularly, Spain argued that adopting the GC’s broad understanding of the concept of ‘third countries’ under EU law (as including entities other than States) would create an autonomous category of EU law and it would thus confer on the concept a different scope in EU law from that in international law (para. 35).

The CJEU did not uphold the distinction between ‘third States’ and ‘third countries’ propounded by the GC (paras. 37- 47). More particularly, the Court argued that this distinction is not made in all language versions of the Treaties, and thus, it cannot necessarily be inferred that a difference in meaning between these two concepts exists as a matter of primary law (paras. 39-42). Noting that in some language version of the Treaties the terms are actually used synomously, the CJEU reprimanded the GC for failing to take into account the relevant linguistic divergences and thus, to pay heed to settled case-law to the effect that different language versions must be interpreted in a uniform manner and that no language version can be made to override others (paras. 40-42). Since the GC’s finding that the concept of ‘third countries’ within the meaning of Art. 35 (2) of the BEREC Regulation goes beyond the concept of sovereign States was made on an erroneous premiss, namely that of a difference in meaning between ‘third States’ and third ‘countries’ in primary law, the CJEU found that the GC’s reasoning was erroneous.

Against this backdrop, the CJEU continued by exploring whether the term ‘third countries’ in Art. 35 (2) of the BEREC Regulation could encompass Kosovo. The Court found that the principle of effectiveness entails that an entity not recognized as a sovereign State should be treated as a ‘third country’ within the meaning of that provision “while not infringing international law” (para. 50). As far as the latter is concerned, the Court referred to the ICJ’s Advisory Opinion on the Kosovo Declaration of Independence as proof that Kosovo’s unilateral declaration of independence did not violate international law, UNSCR 1244/1999, or the applicable constitutional framework (para. 51). Furthermore, the Court argued that this conclusion does not affect the individual positions of Member States since the Commission’s decision concerning the participation of the NRA of Kosovo in BEREC expressly states that the designation ‘Kosovo’ is without prejudice to positions on status (para. 52).

The Court turned next to the interpretation of the concept of ‘third country’ in Article 35 of the BEREC Regulation. Article 35 (2) of the BEREC Regulation stipulates that participation in the agency requires the existence of an ‘agreement’ between the third country and the EU ‘to that effect’ (para. 54). It underscored the fact that the Union has entered several international agreements with Kosovo, “thus recognizing its capacity to conclude such agreements” (para. 55). Article 111 of the SAA provides for co-operation between the EU and Kosovo in the area of electronic communications and is similar in substance to corresponding arrangements made with other Western Balkan States which were deemed sufficient for their NRAs to participate in BEREC. Thus, it is logical to conclude that the provision also covers the arrangement with Kosovo (paras. 56-59). The fact that the notion of ‘third country’ also extends to entities such as Kosovo is further buttressed by having recourse to the purpose of Article 35 (2) of the BEREC Regulation. The provision was adopted with a view to ensuring the consistent implementation of the regulatory framework for electronic communications and thus, it corresponds to the objective of Article 111 of the SAA which is that Kosovo should adopt the EU acquis in that sector (paras. 61-63).

By way of contrast to the GC, however, the CJEU found that the Commission lacked the institutional competence to unilaterally draw up working arrangements applying to the participation of the NRA of Kosovo in the work of BEREC, and thus, it set the judgment under appeal aside and annulled the relevant decision – while maintaining its effects until its replacement by a new act (paras. 96-140).

 

Comment

Interpretative Approach and Methodology

While the Court, in a similar vein to the AG, upheld the principle of linguistic equality which dictates that different language versions must be construed in a uniform manner and that, therefore, an interpretation of the concept of ‘third countries’ on the basis of the Treaties alone is inconclusive, it refrained from clearly setting out its methodological choices in interpreting the term on the basis of the BEREC Regulation. The Court merely relied on the purpose of ‘ensuring the effectiveness’ of Art. 35 (2) of the BEREC Regulation in order to argue that Kosovo should be considered as falling within the scope of the concept of ‘third country’ within the meaning of the provision. However, it is not immediately apparent how the principle of effectiveness guides the interpretative process in casu. Arguably, the Court missed here an opportunity to clarify the role of effectiveness as an interpretative guide which emphasises, or even prioritises, a teleological approach when the interpreter is confronted with equally plausible interpretative choices. By way of contrast, the AG clearly articulated the framework of enquiry into the meaning of the term in the Regulation (by having recourse to its regulatory context, origin, purpose as well as relevant international legal considerations) (AG’s Opinion, paras. 64-86) – an approach which was methodologically sound and thus, led to a much more convincing line of reasoning.

 

The Concept of ‘Third Country’ and Relevant International Legal Considerations

It is important to note that the CJEU was quite laconic in its reasoning as to why Kosovo should be considered as a ‘third country’ and it did not really invoke relevant international legal practice in order to substantiate the view that Art 35(2) of the BEREC Regulation should be interpreted as covering territorial entities that have not been recognized as ‘States’ by the Union.

There are many reasons why this approach is problematic. First, by omitting such references, the Court failed to address Spain’s argument to the effect that affording a broader meaning to the term ‘third countries’ under EU law would create discrepancies with international law – “while States are the key subjects of international relations” (para. 35). Both the GC (paras. 31-32) and the AG (paras. 83-85), had invoked the treaty-practice of the Union itself with territorial entities that have not been recognized as sovereign States by the EU - such as PLO, Hong Kong and Macao as well as Kosovo - in order to buttress the proposition that entities, other than States proper, may also enjoy (limited) capacity to act on the international plane. Indeed,  modern international law acknowledges that legal personality is a spectral concept – while States are actors that “possess the totality of international rights and duties recognized by international law” (ICJ, Reparations for Injuries, p. 180), other actors (such as insurgent groups, national liberation movements and non-self-governing territories) may enjoy a degree of legal personality that affords them the capacity to act on the international plane (including treaty-making capacity). Thus, as the Union’s own treaty-making practice attests to, disengaging international legal personality from the capacity to act avoids the misleading dichotomy between ‘subjects’ and ‘objects’ of international law (as Spain’s argument goes) and allows the weight of enquiry to fall on the extent of the legal capacity a particular entity enjoys in each case. The capacity to act, including treaty-making capacity, is largely a question of recognition; other actors must recognize the (limited) capacity of an effective territorial entity by entering into legal relations therewith. To be sure, the CJEU did mention that “the European Union has entered into several agreements with Kosovo, thus recognizing its capacity to conclude such agreements” (para. 55) – which arguably shows a degree of awareness of the distinction between States, as the subjects par excellence of international law, and the wide circle of participants (with varying degrees of legal capacity) in modern international law. However, the Court’s failure to expound on the issue and to provide examples from international legal practice or from the Union’s own treaty-making practice with non-recognized entities for that matter means that its logic remains implicit.

Secondly, this omission is also rather unfortunate in the light of the ‘effectiveness’ argument put forward by the CJEU. The Court could have grounded its effet utile argumentation exactly by pointing to the wide circle of participants on the international stage. Thus, the Court could have relied on this line of practice to further bolster the proposition that a broad interpretation of the provision at hand is needed in order to ensure that the EU functions as an effective actor on the global stage – which is no longer dominated by States alone. Of course, this construction would entail affording a greater role to effectiveness considerations in the context of interpretation than what they currently have. Instead of the narrower role of protecting the full effect of EU law, considerations of effectiveness of the type asserted here would entail protecting the effectiveness of EU external action – thereby providing the Court with extra tools to ensure the functionality of the Union as an international actor.

In this light, it is perhaps ironic that the Court’s actual reference to international law in the judgment is rather cryptic. The Court stated that on grounds of securing the effectiveness of the provision at hand entities not recognized as sovereign States by the Union should be treated as ‘third countries’ within the meaning of that provision “while not infringing international law” (para. 50). It is unclear what the non-infringement of international law meant. The Court’s subsequent reference to the ICJ’s Advisory Opinion on the Kosovo Declaration of Independence (para. 51) presumably implies that Kosovo can be considered as a ‘third country’ since its declaration of independence does not violate international law – as per the ICJ’s Advisory Opinion.

This is where things get murky. According to Art. 41(2) of the ILC Articles on State Responsibility, there is an international law obligation bestowed upon third parties not to recognize either formally or implicitly an effective territorial situation created in breach of a jus cogens norm (see also Advisory Opinion on the Kosovo Declaration of Independence  para. 81).  However, the CJEU was wrong to assume that the ICJ’s Advisory Opinion answered the broader question of the legality of Kosovo’s unilateral secession from Serbia. The ICJ merely gave an affirmative answer to the considerably narrower question of the accordance of Kosovo’s’ unilateral declaration of independence with international law – without touching upon questions of Statehood or recognition. Since a declaration of independence in and of itself does not create a State, or a new legal situation, it may be considered a legally neutral act – or as Crawford eloquently put it “the sound of one hand clapping.” (Crawford, p. 47). In this light, the CJEU’s reliance on the ICJ’s dictum in order to support the proposition that dealing with a territorial entity as a ‘third country’ under EU law does not infringe international law was rather misplaced.

In reality, there was no need for the Court to make this particular reference to ‘infringements of international law’. The case did not directly involve any questions of formal – and more importantly, implicit - recognition by the Union of Kosovo as a State and hence no question of responsibility of the Union could technically arise here. Art. 2 of the Kosovo SAA expressly states that the agreement does not constitute recognition of Kosovo’s status as a State by the Union and, similarly, the Commission decision at hand expressly states that the designation Kosovo “is without prejudice to questions of status.” The AG avoided this misstep much more eloquently – by addressing the question whether the Commission’s decision constituted implicit recognition of Kosovo as a ‘State’ head on (paras. 87-91).

The above remarks leave the question of whether the EU has an obligation under international law to withhold recognition of Kosovo as a State open. The answer is quite complex and it cannot be comprehensively answered here. There are however several indicia that such an obligation of non-recognition does not exist in relation to Kosovo. First, there is little evidence to suggest that Kosovo’s unilateral secession was attributed to a violation of a jus cogens norm and in casu no specific resolution by the UN calling for collective non-recognition has been issued (by way of contrast to, for example, Southern Rhodesia or the TRNC). Recognition by other States also plays an important role here – having a curative effect in relation to possible deficiencies in which a State came into being (Supreme Court of Canada, Reference re Quebec, para. 155). Some 100 States have recognized Kosovo’s claim to Statehood – something which could be viewed as evidence that Kosovo’s attempt at State creation has been successful.

Despite its shortcomings in terms of reasoning on the basis of international law, the judgment is important as it clarifies that the (rather artificial) distinction made by the GC between ‘third States’ and ‘third countries’ does not exist – at least as a matter of EU secondary law. Its implications for Kosovo’s future relations with the EU remain to be seen – particularly since the question of whether Kosovo constitutes a ‘State’, as Art. 49 TEU seems to require, remains open.

State Immunity, Comity and the Question of Legal Standing of a Third Country before the CJEU: The Opinion of AG Hogan in Case C‑872/19 P Venezuela v Council

 

 

Eva Kassoti, Senior Researcher, CLEER academic co-ordinator, T.M.C. Asser Institute. E-mail: E.Kassoti@asser.nl

 

In his Opinion delivered on 20 February 2021, A.G. Hogan tackled an important procedural question: Does a third State have legal standing to challenge EU acts before the CJEU? The question at bar is significant not only because the Court has never addressed it directly before in the context of sanctions, but also because it involves enquiring into the principles that mediate the relationship between the EU legal system and other subjects of international law.

 

The case is an appeal against the General Court’s judgment of 20 September 2019, in which that Court was asked to rule on whether Venezuela could challenge a series of restrictive measures prohibiting the provision of arms, military as well as surveillance equipment to any natural or legal person, entity or body in, or for use in, Venezuela.

 

Answering this question necessitates examining whether the conditions of Art. 263(4) TFEU (on standing to bring direct actions for annulment of EU law, if the challenger is not a Member State or EU entity) to have been met. In casu, the answer is contingent on examining whether Venezuela is a legal person that is directly and individually concerned by the measures at hand, or, in the case that the measures are considered as regulatory acts, it is sufficient to show that these measures are of direct concern to Venezuela and do not entail implementing measures. The General Court found that Venezuela was not directly concerned by those measures, and thus, that it lacked standing under Art. 263(4) TFEU – without however addressing the question of whether Venezuela is a legal person within the meaning of the same provision.

 

In his Opinion, the AG focused on two main issues in order to answer the question of legal standing: (i) whether Venezuela is a legal person within the meaning of 263(4) TFEU; (ii) whether Venezuela is directly concerned by the measures in question within the meaning of 263(4) TFEU. The A.G. proposed that the CJEU answers both questions to the affirmative. If the Court follows the A.G.’s line, this could reinforce the image of the EU as a global actor committed to the rule of law and to effective judicial protection by recognising in essence that third States have a right to challenge EU law measures them before EU courts, provided that the conditions set out in Art. 263(4) TFEU are satisfied – even in the absence of reciprocity. This blogpost focuses on the AG’s analysis of the question of ‘legal personhood’ as the question of direct concern has been discussed elsewhere.

 

Is Venezuela a legal person within the meaning of Art. 263(4) TFEU?

 

According to the A.G., both international and EU law considerations buttress the finding that Venezuela should be considered as a legal person for the purposes of Art. 263(4) TFEU.

 

International Law Considerations

In relation to the international law arguments supporting this finding, the A.G. (correctly) rejected the Council’s assertion that Venezuela is barred from bringing a suit before the CJEU on the basis of the doctrine of State immunity.  The AG argued that the law of immunities cannot limit the legal standing of Venezuela since this action is brought by Venezuela and not against Venezuela. Indeed, State immunity under international law is aimed at facilitating the performance of public functions by the State and its representatives by preventing actions being brought against them before foreign courts. It does not however imply that third States are barred themselves from appearing as claimants before foreign courts – as Art. 8 of the 2004 UN Convention on Jurisdictional Immunities of States and their Property makes abundantly clear.

 

However, the rest of his line of argumentation on the basis of international law seems rather weak and convoluted. The A.G. argued that the international law principle of comity should inform the interpretation of what constitutes a legal person for the purposes of Art. 263(4) TFEU and that, on the basis of comity, the CJEU should be open to challenges brought by States in their sovereign capacity as international legal persons. It is interesting to note at this juncture that if the Court chooses to take up this point it would be the first that it will rule directly on the question of whether international legal personality implies that an entity is a ‘legal person’ also for the purposes of an action of annulment. This argument has been expressly made before by Front Polisario, a national liberation movement with (arguably) a measure of international legal personality, in the context of the Front Polisario v Council case, but the General Court eschewed engagement therewith and ruled on Polisario’s legal personality solely from the standpoint of EU law.

 

However, from an international law point of view, the argument made by the A.G. is rather unconvincing. In fact, there seems to be no rule of customary international law requiring one State to allow another State to bring suit in its courts. Rather, comity is a domestic law doctrine (that has been mainly employed by US courts) under which deference is afforded to foreign states to bring suits before domestic courts as plaintiffs. The practice relied on by the AG (the Banco National de Cuba v Sabbatino judgment by the US Supreme Court) as well as a survey of other relevant case-law (the Sapphire; the Hilton v Guyot; the Santissima Trinidad – all judgments by the US Supreme Court) attest to the domestic law pedigree of the principle of comity. The AG failed to show how this domestic law principle has entered the corpus of international law. Overall, great caution needs to be exercised in using domestic cases in order to make propositions about general international law. The very notion of ‘comity’ in international law is linked to practices of a discretionary character; this runs counter to the modern understanding of customary international law “as evidence of a general practice accepted as law” (Art. 38(1)(b) ICJ Statute).

 

The international law blunder aside, the question arises as to whether there are good reasons to adopt the relevant doctrine as a matter of EU law. While the principle of comity is distinct from international law, it undoubtedly remains an internationally oriented principle that is important in shaping a State’s relations with the outside world. Showing deference to third States as litigants before the CJEU would certainly be within the spirit of Art. 3(5) and 21 TEU and it would consolidate the external projection of the EU as a confident and internationally engaged polity committed to the ethos of the rule of law.

 

EU Law considerations

 

The A.G. also relied on a number of EU law precedents where the CJEU had (en passant) accepted that third States have legal standing to bring an action for annulment under Art. 263(4) TFEU – although, admittedly, the context in which these rulings were made was not that of restrictive measures as is the present one (Cambodia and CRF v Commission, para. 51; Poland v Commission, paras. 51,52; Switzerland v Commission, para. 22). In the context of restrictive measures, the A.G. found the Court’s judgment in PKK and NKK v Council of particular importance since it implies that, even in the absence of legal personality, an entity that is directly and individually affected by restrictive measures must have access to EU courts in order to protect its rights. On the basis of these EU law precedents and taking into account that respect for the rule of law and the principle of effective judicial protection are core EU law principles, the A.G. concluded that Venezuela must be regarded as a legal person within the meaning of Art. 263(4) TFEU – even in the absence of reciprocity since “respect for the rule of law and the principle of effective judicial protection is not based on any notion of reciprocity and they cannot be traded or compromised in diplomatic exchanges or made subject to reciprocal treaty obligations.”

 

This part of the A.G.’s Opinion is particularly convincing – especially in the light of the Court’s relevant case-law. In PKK and NKK v Council, the Court emphasised that the procedural rules governing the admissibility of an action for annulment must be read with a view to “avoiding excessive formalism” – something that would amount to denying to an entity against which restrictive measures have been taken the possibility of applying for annulment. One may add that it would at least raise an eyebrow if the Court denied Venezuela - a sovereign State and as such, the example par excellence of an international legal person - capacity to bring annulment proceedings, while it has recognised such capacity for entities such as the Western Saharan Front Polisario and the Sri Lankan Liberation of Tigers of Tamil Eelan.

 

While one may concede that there are good reasons to adopt the A.G.’s approach to legal personhood, the question arises as to whether there may be far-reaching implications for the conduct of the EU’s foreign relations. Would allowing third States to challenge EU law measures before the CJEU open the floodgates for a number of politically charged questions of recognition of entities (such as Kosovo and Palestine) to be decided by the Court? This fear seems to be exaggerated. As the doctrine of comity has been applied by US courts, exceptions are accepted in case of States not recognised by the US. This would ensure that, while the CJEU shows a great degree of openness to review measures affecting third States, it would not be used to make determinations regarding (often politically charged) issues of recognition.

 

Barnard & Peers: chapter 24

Photo credit: Archilider, via WikiCommons Media

CJEU asked to rule on acquisition of nationality in light of EU citizenship: The fundamental status on the horizon? (C-118/20 JY v Wiener Landesregierung)

David A.J.G. de Groot, EU-CITZEN Network*

* I would like to thank Tania Isacu, Rainer Bauböck and Gerd Valchars for their very useful comments.

Introduction

The Supreme Administrative Court of Austria has requested a preliminary ruling from the Court of Justice of the European Union (CJEU) in the case C-118/20 JY v. Wiener Landesregierung, concerning the revocation of a guarantee of the grant of Austrian nationality.

Austria maintains a strict ‘single nationality’ policy, meaning that wherever possible, it requires that a person has only Austrian nationality and no other. Consequently, Austrian nationality is lost in most cases automatically upon voluntary acquisition of another nationality. Equally, Austria requires that upon acquisition of its nationality all previous nationalities have to be relinquished. Austria, as opposed to e.g. Germany, has made no exceptions to this rule where the previous or future nationality is the nationality of a Member State.

C-118/20 JY concerns the procedure for acquisition of Austrian nationality, and more specifically at which moment during the procedure the previous nationalities have to be lost, and whether this is in conformity with the rules on EU citizenship.

Facts of the case

It is unclear from the facts when JY exactly moved to Austria. What is known is that JY applied on 15 December 2008 for Austrian citizenship. At the time, JY held Estonian citizenship and was therefore an EU citizen. More than five years later, in March 2014, the authorities granted her a guarantee of the grant of Austrian nationality, which would enable acquisition of Austrian nationality on condition of providing proof that the previous nationality had been relinquished.

Technically speaking, at this moment she was still not an Austrian national.

She subsequently relinquished her Estonian citizenship on 27 August 2015. Consequently, from that moment on she was stateless.

On 6 July 2017, the authorities revoked the original guarantee of the grant of Austrian nationality and rejected her application for Austrian citizenship.

The reasons provided by the authorities was that JY had committed two serious administrative offences since the decision on the guarantee of the grant of Austrian nationality. These, in combination with eight prior offences (all speeding offences), made her ineligible for naturalization. The two serious administrative offences concerned a failure to provide a compliant vehicle inspection disk and driving under the influence of alcohol.

Based on this, the Administrative Court considered that her future conduct could not be ascertained.

Additionally, the Administrative Court considered that the C-135/08 Rottmann decision of the CJEU was not applicable, since at the time of the revocation decision, JY no longer was an EU citizen, as she was stateless. The court furthermore considered that the breaches were of such a serious nature that the revocation of the guarantee was proportionate in light of the 1961 Convention on the reduction of statelessness. Also, the requirements for revocation of the guarantee as provided for in the Austrian Citizenship Act were considered fulfilled.

On appeal, the Supreme Administrative Court referred the following questions to the CJEU:

Does the situation of a natural person who, like the appellant in cassation in the main proceedings, has renounced her only nationality of a Member State of the European Union, and thus her citizenship of the Union, in order to obtain the nationality of another Member State, having been given a guarantee by the other Member State of grant of the nationality applied for, and whose possibility of recovering citizenship of the Union is subsequently eliminated by revocation of that guarantee, fall, by reason of its nature and its consequences, within the scope of EU law, such that regard must be had to EU law when revoking the guarantee of grant of citizenship?

If the first question is answered in the affirmative,

Is it for the competent national authorities, including any national courts, involved in the decision to revoke the guarantee of grant of nationality of the Member States, to establish whether the revocation of the guarantee that prevented the recovery of citizenship of the Union is compatible with the principle of proportionality from the point of view of EU law in terms of its consequences for the situation of the person concerned?

Analysis

There are many different issues in this case.

Primarily, there is the question: is EU citizenship applicable? Does it only have to be taken into account? Or, has it in fact been violated?

In its C-369/90 Micheletti judgment, the CJEU stated back in 1992 that “under International law, it is for each Member State, having due regard to Community law, to lay down the conditions for the acquisition and loss of nationality” (emphasis added). This was consistently repeated in the EU citizenship cases C-192/99 Kaur, C-200/02 Zhu and Chen, C-135/08 Rottmann and C-221/17 Tjebbes (discussed here). Therefore, the role of EU citizenship in this case will feature quite prominently.

However, before we delve into the questions of whether and how EU law is applicable, we should wonder whether the procedure applied by Austria for acquisition of nationality is actually even in conformity with international law.

Relinquishment requirement under international law

The Austrian authorities and the referring court seem to be under the impression that this method of using a temporary guarantee for the acquisition of nationality in order for the person to relinquish their other nationality is in conformity with international law. In short: it is not!

By de facto requiring that before a final assessment for naturalization the person has already relinquished all nationalities and consequently is stateless, Austria is violating the 1961 Convention on the reduction of statelessness and the European Convention on Nationality (ECN). By making a full reassessment of the eligibility (with the exception of the income requirement, a reassessment of which had been considered in violation with the Constitution) after the other nationalities have been relinquished, thus by conducting an assessment ex nunc and not ex tunc, the law deviates from international standards.

The guarantee given by Austria did not satisfy the criteria of Article 7(2) of the 1961 Convention, which provides that “A national of a Contracting State who seeks naturalization in a foreign country shall not lose his nationality unless he acquires or has been accorded assurance of acquiring the nationality of that foreign country.” In the 2013 Tunis Declaration of the UNHCR, concerning the interpretation of the 1961 Convention, it is stated that loss of the previous nationality should in principle only occur upon acquisition of the other nationality. An exception is provided where an assurance for the future acquisition is given. However, the Declaration clearly states that such an assurance for the grant of nationality may not be “retracted on grounds that conditions for naturalization are not met”. It is equally provided in the Declaration that the state of previous nationality may only provide for loss of its nationality if the guarantee provided is “unconditional and does not leave any discretion to the authorities of the country.” Since the guarantee made by Austria was not unconditional, could be and was actually retracted based on a new assessment of eligibility, Austria can be considered in violation of international law.

Additionally, by giving the impression that its nationality will be acquired and thus a renouncement of the previous nationality will not cause statelessness, Austria has violated the principle of mutual trust in EU law. Every renouncement made in accordance with the nationality laws of the other Member States in order to obtain Austrian citizenship in essence violated those other Member States’ laws and commitments to the prevention of statelessness.

Paradoxically, one could consider that any guarantee ever made by Austria, irrespective of whether the nationality was acquired later or not, had no legal value under international law. Thus, Austria may have created a situation where many naturalized citizens have technically never lost their previous nationality, because the renouncement was contra legem at the time it was made (due to the fact that it would have rendered the person stateless and the guarantee could not provide sufficient assurance that it would not). Only those naturalized citizens who would have lost the previous nationality automatically due to voluntary acquisition of Austrian nationality (e.g. previous nationals of the Netherlands, Lithuania and Slovakia) would only have Austrian citizenship.

Question 1 - EU citizenship law applicable

The Administrative Court considered that EU law, and specifically EU citizenship, was not applicable to the case because at the moment of the decision revoking the guarantee, JY was already stateless and no longer an EU citizen.

This is a rather narrow interpretation and also rather galling considering the fact that it was the Austrian procedure for the acquisition of nationality that created that situation in the first place.

One should consider the question of applicability of EU law, and specifically EU citizenship, from two slightly different perspectives: (1) EU citizenship (Article 20 TFEU) and (2) free movement (Article 21 TFEU).

(1) Taking the view point of Article 20 TFEU, the case already clearly falls within the ambit of EU citizenship, but not necessarily for the reasons pointed out by the referring court.

The referring court makes this a case of loss of EU citizenship, while arguably it is actually a case of acquisition of EU citizenship.

As was stated above, the CJEU has consistently held that the Member States must have due regard to Union law when laying down the conditions on acquisition and loss of nationality. However, until now there have been no cases concerning acquisition of nationality. National courts seem to believe that only where the nationality, and thus EU citizenship, is lost, does EU law comes into play. However, arguing so, they forget that EU law is equally applicable to the acquisition of nationality.

This principle of applicability of EU law to the acquisition of the nationality of a Member State should apply irrespective of the nationality of the person prior to the acquisition, be it that of a Member State, a Third-Country or when the person is stateless.

In the present case, though, since JY had the nationality of a Member State before starting the procedure for acquisition of another Member State’s nationality – which Austria cannot deny considering that it applied the facilitated naturalization criteria for EU citizens on the basis of Article 11a(4)(2) of the Austrian Citizenship Act to JY – the applicability of EU law to the case is beyond doubt.

Any arguments brought forward by the Austrian authorities that the moment of revocation of the guarantee is the point of reference for establishing whether the nationality of the person makes EU citizenship law applicable (which is irrelevant, as explained, since it concerns an acquisition and not a loss case) conflicts with the principle of estoppel. It was the Austrian guarantee that did not fulfil the requirements to ensure that JY would have been an EU citizen.

(2) The referring court has only made reference to Article 20 TFEU in its submissions; however, one should consider that Article 21 TFEU is equally applicable.

Prior to becoming stateless, JY was an EU citizen who made use of her right of free movement by residing in a Member State other than the Member State of nationality. Consequently, her residence prior to becoming stateless was based on Directive 2004/38.

In its judgment C-165/16 Toufik Lounes (discussed here), the CJEU stated that “the rights conferred on a Union citizen by Article 21(1) TFEU, […] are intended, amongst other things, to promote the gradual integration of the Union citizen concerned in the society of the host Member State.” The Court furthermore considered that “Union citizens, […] who, after moving, in the exercise of their freedom of movement, to the host Member State and residing there for a number of years pursuant to and in accordance with Article 7(1) or Article 16(1) of Directive 2004/38, acquire the nationality of that Member State, intend to become permanently integrated in that State.”

Thus, according to the CJEU, naturalization by an EU citizen in the Member State of residence is the ultimate proof of having become permanently integrated in the society of the host Member State.

The CJEU considered that “it would be contrary to the underlying logic of gradual integration that informs Article 21(1) TFEU to hold that such citizens, who have acquired rights under that provision as a result of having exercised their freedom of movement, must forego those rights –– in particular the right to family life in the host Member State –– because they have sought, by becoming naturalised in that Member State, to become more deeply integrated in the society of that State.”

Considering that the CJEU stated that one could not allow an EU citizen to forego rights by becoming more deeply integrated in the society of the host State, a fortiori one cannot expect a Union citizen to gamble away his or her EU citizenship on the possibility of becoming more deeply integrated in the society of the host State, not only foregoing some rights, but the entire legal framework their existence in that State and personal identity are based on. For, from the moment she became stateless, Directive 2004/38 seized to be applicable to JY.

This case, therefore, goes beyond mere Article 20 TFEU, since the rights acquired under Article 21 TFEU are equally at stake.

For that reason, under all circumstances the questions would have to be rephrased in order to include Article 21 TFEU.

The answer to the first preliminary question is thus a definite ‘yes, EU law has to be taken into consideration when a guarantee to acquire the nationality of a Member State is revoked.’

Question 2 - EU law violated

In its second question, the referring court wonders if the national authorities have to consider whether the revocation of the guarantee that prevented the recovery of citizenship of the Union is compatible with the principle of proportionality from the point of view of EU law in terms of its consequences for the situation of the person concerned.

This is the wrong question.

The reference in the question to the principle of proportionality is a consequence of the erroneous reasoning of the referring court that the case concerns loss of nationality, while – as explained above – it actually concerns acquisition of nationality. If indeed it were to concern loss of nationality, then it would be clear based on C-135/08 Rottmann and in C-221/17 Tjebbes that it is mainly the principle of proportionality that has to be observed when it concerns the loss of the nationality of a Member State and of EU citizenship. In C-221/17 Tjebbes the Court listed multiple criteria which have to be observed in such cases. In the present case concerning acquisition of nationality, while the principle of proportionality of course has to be observed, this is by far not the only part of EU law that will have to be considered.

It should be noted at this point that the Administrative Court considered the traffic violations ‘serious crimes’ capable of and proportionate for justifying a revocation of the guarantee. Driving under influence might cause a situation where the consequences could result in a criminal offence; however, the referring court also stated that according to its recurring case-law such a violation will cause revocation of the guarantee irrespective of the actual volume of consumption in the case. If we consider e.g. a situation where the volume is very low, but just above the permitted limit, this cannot be equated to an offence which requires a long prison term (in Austria it does not. The two administrative offences solely resulted in fines totalling €412). It should definitely not be an administrative offence that renders you stateless.

I would like you to also think about the other violation of not having a compliant vehicle inspection disk. Just consider the next time when you have to bring your car to the vehicle inspection that your nationality might depend on it. Would you consider this reasonable? For the time being, I would advise any person who is considering to ever naturalize in Austria to sell their car.

Considering the fact that it concerns ‘recovery of citizenship of the Union’, one should wonder first whether the entire situation that led to this can be considered compatible with EU law.

As was already explained above, the guarantee of the grant of nationality was not unconditional and could be retracted. Therefore, the guarantee did not even fulfil the requirements under international law.

Since EU law is applicable, the Charter of Fundamental Rights of the EU (CFR) and the general principles of EU law are also applicable.

One should consider that JY’s legitimate expectations have clearly been violated. She acted in complete good faith by renouncing her Estonian citizenship in order to acquire the Austrian nationality. This good faith has been thoroughly betrayed.

One should, furthermore, consider that there might be a violation of JY’s right to private life as protected by Article 7 CFR. This is due to the fact that nationality, just like all other civil status, is governed by private life. A requirement to become stateless in order to acquire another nationality, and then additionally refuse the grant of this nationality, is an unjustifiable violation of the right to private life.

Furthermore, as was explained above, we are presented here with a clear violation of Article 21 TFEU. No EU citizen should ever have to forego all rights derived from EU law in order to become more permanently integrated in an EU host State.

The second question should therefore be rephrased in order for it not to be limited to the principle of proportionality, but to EU law in general. Additionally, it would serve the CJEU to extend the scope of the question to include an assessment whether the naturalization procedure of Austria is in conformity with EU law.

Time to take a stance on dual EU citizenship

There is an additional reason why the method employed by Austria violates the free movement rights, but this requires a longer explanation.

One should consider this case in a large and complex web of different lines of case-law.

In my Article on the “Free Movement of Dual EU Citizens”, I have explained that the C-165/16 Lounes case has created a rather complicated situation. This is due to the distinction made by the CJEU between ‘single’ EU citizens – being persons who have the nationality of only one Member State – and ‘dual’ EU citizens – being persons who have the nationality of more than one Member State.

As I explained in that Article, when a person returns to their Member State of nationality, and this is the only Member State of which (s)he has the nationality, the ‘right to return’ case-law applies (C‑370/90 Surinder Singh; C‑291/05 Eind; C-456/12 O&B, discussed here; C-230/17 Altiner and Ravn). This means that the person will only retain those rights derived from EU law that (s)he had made use of prior to the return while residing in another Member State. As was shown, prior to C-165/16 Lounes, problems arose for dual EU citizens when they moved between Member States of nationality, being on the one hand excluded from the scope of Directive 2004/38, while on the other hand only rights that were acquired on the basis of the Directive could be retained.

After C-165/16 Lounes, on the contrary, a dual EU citizen who returns or moves to one of his or her Member States of nationality, would not only be able to retain rights which were previously used, but continues to be able to derive new rights from the EU citizenship framework. This means that a single EU citizen is not treated in the same manner as a dual EU citizen would in a Member State of nationality, while both have made use of their free movement rights. While single EU citizens are still affected by reverse discrimination, dual EU citizens are only affected by it if they have never moved to and resided in the Member State in which they were born and of which they have the nationality.

I wrote that this differentiation is dangerous. I also stated that the CJEU should consider situations where the EU citizen had to renounce or automatically lost their original Member State’s nationality upon naturalization in another Member State, like in the case at hand.

I considered that one may not make a distinction between persons who acquired a nationality at birth and those who acquired it by naturalization. The reasoning of the CJEU in Lounes would have required a further distinction between persons who had naturalized and previously had the nationality of another Member State and those that had the nationality of a Third Country prior to naturalization. This would create immense problems.

Consequently, an application of C-165/16 Lounes to naturalized EU citizens who lost the previous nationality, without completely abolishing reverse discrimination, is impossible.

I stated that if the CJEU considered that there are two lines of case-law – one concerning single EU citizen returners and one concerning dual EU citizens – , it would have to restrict Member States as to requirements of renouncing the previous nationality if this is the nationality of another Member State and to the automatic loss of the nationality upon acquisition of another Member State’s nationality.

I considered that the requirement of renunciation of the previous nationality would equal a requirement to choose for the ‘single EU citizen’ framework and, therefore, to forego rights; and equally the automatic loss of a Member State’s nationality would be for the sole reason that the person wanted to become more integrated in the Member State of residence. This also meant that a person with only the nationality of a Member State with a strict ‘single nationality’ policy would be at an enormous disadvantage, since (s)he would have to naturalize twice in order to get within the dual EU citizen framework. In order to get within the ambit of this framework, a person who is a national from a Member State with a strict ‘single nationality’ policy would, in a first stage, have to lose this nationality by naturalizing in another Member State which permits multiple nationalities; and subsequently, in a second stage, acquire, additionally to this newly acquired nationality, another nationality from another Member State. While a person who originally already had the nationality of a Member State that permits dual nationality, would immediately start at the second stage.

In the case C-230/17 Altiner and Ravn, which concerned returners, the CJEU had the opportunity to make C-165/16 Lounes applicable to single EU citizens and end reverse discrimination. This opportunity has passed and the Court repeated its ‘right to return’ case-law without any significant change.

One should be aware though that, whatever happens in C-118/20 JY, this case will have an impact in other areas of EU law. For example, the C-386/02 Baldinger case of the CJEU where the Court accepted Austria’s refusal to continue to grant certain pension rights to a person who lost Austrian nationality upon acquisition of Swedish nationality, will have to be revisited.

The Court will have to follow through with the line it has taken and declare in C-118/20 JY that these automatic loss clauses and requirements to renounce the other Member State’s nationality are incompatible with EU citizenship.

If it does not, there will be no more legal EU citizenship framework building up to a fundamental status, but just a random set of cases which had potential, once upon a time. That is not the story we would like to tell.

Conclusions

The case C-118/20 JY v. Wiener Landesregierung, concerning the revocation of a guarantee of the grant of Austrian nationality, is more than a case on loss of EU citizenship. It is the first case where the CJEU will have to rule on the acquisition of EU citizenship.

It was considered here that the preliminary questions referred imply that the Austrian rules concerning the duty to renounce the previous nationality are compatible with international law and EU law in general. It was demonstrated that they are not.

It has been shown that the guarantee of the grant of Austrian nationality violates international law to such an extent by being revocable that any naturalized person in Austria might argue that (s)he might still have the original nationality, due to the fact that the renouncement had been contra legem. It was furthermore considered that Austria, in having a guarantee that is revocable, violated the principle of mutual trust.

Additionally, it was argued that not only Article 20 TFEU is applicable to the case, as the referring court insinuated, but also, and especially, Article 21 TFEU.

It was maintained that the CJEU will additionally have to consider that this case is an extension of its Lounes judgment. In Lounes and subsequently in Altiner and Ravn, the Court has made a distinction in the EU citizenship framework between ‘single’ EU citizens and ‘dual’ EU citizens. In JY it will now have to complete this distinction by decreeing that it is no longer permissible for a Member State to require that a person who wants to naturalize has to forego rights by renouncing his or her other Member State’s nationality. Equally, Member States will no longer be permitted to provide for the automatic loss of their nationality when one of their nationals acquires the nationality of another Member State.

One should keep a close watch on this case as it will have an impact in many areas of EU law. The fundamental status of EU citizenship might be on the horizon.

Barnard & Peers: chapter 13

Photo credit: Jules Verne Times Two / julesvernex2.com / CC-BY-SA-4.0 (linked to: https://creativecommons.org/licenses/by-sa/4.0/deed.en) See also: http://julesvernex2.com

Private Schools and the Politicization of Treaty Obligations

Dr Kasey McCall-Smith, Senior Lecturer in Public International Law, University of Edinburgh

The 2019 Labour Party Annual Conference has received more than usual attention this year, notably its resolution to end private schools in the UK. Not for the first time this year, the fervour of politicians must be checked against the realities of the law, specifically international and human rights law. In March, Theresa May offered a unilateral statement to the EU on the UK interpretation of the then-Withdrawal Agreement Protocol on Ireland/Northern Ireland in relation to the backstop set out therein. A few days later, Geoffrey Cox MP incorrectly argued that article 62 of the Vienna Convention on the Law of Treaties (VCLT) offered an easy way out of the then-Withdrawal Agreement and the backstop. As exhausted with Brexit as every other academic at the time, I painstakingly set out why the UK government and Parliament would do well to stop relying on concepts in international treaty law to cure all that is disagreeable with the Brexit process.

The 22 September vote by the Labour Party to include in its manifesto a ‘commitment to integrate all private schools into the state sector’ equally demonstrates why politicians should proceed with caution when threatening rights protected by international agreements.

Whether for or against private education, there was very little tangible change from existing policy proposals to cut tax relief to the independent schools that educate approximately 6-7% of children in the UK. More notable are the questions raised by Labour’s approach to protected rights. This Labour party policy raises questions about the understanding of the limits of any UK government to restrict international human rights obligations to which it has long been bound and also incorporated into national law. One such example raised by this policy proposal is the right to education set out in article 2 of the first Protocol (P1) to the European Convention on Human Rights (ECHR).

In essence, the proposed measure eliminates the option to send children to fee-paying schools in the UK, an option that in some, though not all, cases enables parents to exercise ‘their own religious and philosophical convictions’ (P1 article 2). Clearly, it is a matter of debate whether such ‘convictions’ extend to private (cf. State-funded) education and whether eliminating private schools alone would constitute a breach of the right. Aside from removing decision-making capabilities from parents, the long-running debates about private versus public education or margin of appreciation debates, there are other legal questions to consider when parties politicize international legal obligations.

Can this or a future UK government nullify a single article of the first Protocol to the ECHR or multiple articles spanning the Convention? Continuing with the right to education example and assuming that the proposed policy is argued to breach that right, the following traces the relevant analysis under international law to determine if the UK can, effectively, change its mind about applying it treaty obligations.

The first step requires a determination of the status of the first Protocol to the ECHR once ratified and in force, which it has been for the UK since 1952. P1 article 5 dictates that ‘the provisions of Articles 1, 2, 3 and 4 … shall be regarded as additional Articles to the Convention and all the provisions of the Convention shall apply accordingly.’ In short, the articles are amalgamated into the ECHR and carry the same weight as those in the original Convention. This is reinforced in the UK Human Rights Act 1998 s1(1) (notably excluding P1 article 4).

But could the UK government cease to observe an article of the ECHR or one of its Protocols? Because the first Protocol is integrated into the umbrella of the ECHR the rules of the original Convention are applicable. By asserting that the state will no longer apply a treaty provision in full, the permissibility of such an assertion must be examined. Under the VCLT treaty rules and customary international law, the only way to exclude a treaty obligation in part or in full is by reservation. However, under both ECHR article 57 and VCLT article 19, reservations may only be made when signing or ratifying a treaty. Therefore, reservations are not an option for the UK decades after ratifying the Convention. The only possible caveat being denunciation (more below) and re-ratification with a new reservation in line with that which was done by Trinidad and Tobago in relation to Optional Protocol 1 to the ICCPR. Still, this procedure is not currently recognized in ECHR practice or under customary treaty law and would no doubt set a dangerous precedent.

Some have also queried the possibility of ‘denouncing’ a single article. ECHR article 58 governs denunciation of the Convention but only gives guidance on denunciation of the Convention as a whole. It is silent on denunciation of an individual article. When a treaty is silent on issues of procedure, the default rules of the VCLT are used to fill any gaps. VCLT article 44 outlines a preference against the separability of individual treaty provisions by denunciation, withdrawal or suspension unless expressly provided for by the relevant treaty. Furthermore, article 44 must be read in conjunction with Articles 56 or 60 VCLT. Article 56 VCLT addresses denunciation when a treaty is silent on the issue – but the ECHR is not silent on this.  Article 60 VCLT deals with termination or suspension of a treaty as a consequence of its breach. The breach must be by another state, thus the UK cannot invoke article 60 if it breaches the ECHR. It is safe to say that denunciation of a single article or even multiple articles is not a possibility.

The only remaining option for abrogating an individual article would be derogation. ECHR article 15 clarifies that though some fundamental rights may never be subject to derogation, ‘[i]n time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation’. While the right to education, and indeed most rights, could be subject to derogation, it is difficult – if not logically impossible – to see how such a public emergency could justify a policy of prohibiting private education per se.

What the last few months have taught us is that politicians would do well to recognise the legal implications of their policy strategies and ambitions before straining too far into rhetoric. And for those wishing to insulate the UK against global interference, this is a timely reminder that regardless of any future status in the EU, the UK will continue to have international and regional obligations.

Photo credit: Tatler

The second vote against the withdrawal agreement: what next?

Professor Steve Peers, University of Essex

Introduction

The second attempt to approve the withdrawal agreement has been defeated again in the House of Commons. What were the main legal issues in this second attempt – and what is the way forward, if any?

Overview

MPs were asked to vote on five documents:

a)      The Withdrawal Agreement, as agreed in November, which has not been changed (see my overview of the agreement here)

b)      The non-binding Political Declaration on the future relationship with the EU, which has not been changed (see my detailed annotation of the declaration here)

c)      A new Instrument relating to the Withdrawal Agreement, which claims to be legally binding; it is based on a previous exchange of letters

d)      A new, non-binding Joint Statement supplementing the Political Declaration; and

e)      A unilateral declaration by the UK on the issues.

Assessing the new texts in ascending order of importance, the Joint Statement on the Political Declaration is mainly about the timing of future talks, an issue which was addressed in the Political Declaration already in some detail. It is useful that the Commission commits to proposing provisional application of future post-Brexit EU/UK treaties, to speed up their application pending national ratification if needed, but not really surprising as this is common EU practice.

There’s a potentially important point on the future UK legal framework:

5. Fourth, and in the context of open and fair competition, the Union notes the United Kingdom’s intention to ensure that its social and employment standards and its environmental standards do not regress from those in place at the end of the transition period, and to provide its Parliament the opportunity to consider future changes in Union law in these areas.

However, a unilateral intention is not an international law guarantee, and the possibility to consider future EU legislation is a weak level of commitment. It also leaves out the impact of future CJEU case law. On this issue – and on the prospect of a future customs union – the UK government might obtain some Labour party support for the withdrawal agreement if it went further. However, going further on the prospect of a future customs union would split the Conservative party.

In any event, the political declaration, on top of its non-binding status, is vague or non-committal about a number of key aspects of the future relationship. It could be revised along the lines of my suggested amendments in my annotation, to provide for firmer and more precise commitments.

The unilateral UK government statement is not unusual as such, since there are often unilateral declarations attached to treaties. It might have some value as regards interpreting the treaty, as the Attorney-General’s advice points out. But in any event, on a close reading it does not assert very much substantively.

The first paragraph is an expression of intention about quickly starting talks on the future relationship. This matches the commitments in the political declaration on the future partnership. The second paragraph simply reiterates the withdrawal agreement text that the Northern Ireland backstop is not intended to be permanent. In this context, the third paragraph states the UK’s view that if the EU acts in bad faith when negotiating a replacement for the backstop, the UK could bring a claim under the dispute settlement provisions of the withdrawal agreement that could lead to the disapplication of the backstop. In any event, the UK will avoid a hard border and comply with its obligations under the Good Friday Agreement.

This claim simply reiterates the UK’s capacity to ask the arbitrators under the withdrawal agreement to rule on the alleged bad faith by the EU, and to exercise the remedy of disapplication of parts of the treaty that would potentially be allowed under the agreement in the event that it won its case (and assuming that the arbitrators did not find, upon request by the EU, that such a response by the UK was disproportionate). This claim does not alter the legal position however: the UK was always able to make such a claim under the withdrawal agreement, and the unilateral declaration does not mean that the arbitrators would be obliged to agree with the UK that bad faith existed or that the disapplication of the backstop was proportionate.

Finally, as for the joint instrument, it is legally binding based on the parties’ express agreement to this effect.  Indeed, as the text points out, under Article 31 of the Vienna Convention on the Law of Treaties the parties can agree additional texts supplementing a treaty, which are influential when interpreting that treaty. There’s a recent example of such a practice as regards the similar joint instrument agreed between the EU and Canada, which is already referred to by an Advocate-General of the CJEU.

But the issue is the substance of the joint instrument. Part A simply spells out some details of the mechanics of the negotiations aimed to replace the backstop. It adds, similarly to the UK unilateral declaration, that it would be in bad faith to act to attempt to keep the backstop applicable indefinitely. The dispute settlement process could be invoked in such a case, with the possibility of unilateral suspension of part of the agreement in the event of a breach.

Part B sets out safeguards for Northern Ireland.  The withdrawal agreement does not alter the Good Friday Agreement, including the role of the devolved Northern Ireland government. It clarifies that not all new EU measures will be added automatically to the Protocol. Finally, Part C notes that the future relationship between the UK and the EU need not have the same territorial scope as the withdrawal agreement.

The instrument therefore confirms the interpretation of certain potentially arguable aspects of the withdrawal agreement, in particular whether the claim of bad faith regarding negotiation of future treaties is justiciable before the agreement’s dispute settlement system. However, as the Attorney-General and others have noted (see Michael Dougan on this blog, and David Anderson and others), this does not amount to a unilateral right to exit the backstop by the UK, as some would wish to see. As a result, the vote was lost.

What next?

The Commons is due to vote on a no deal outcome and on a request for an extension. Some believe that an election or another referendum is possible (both would require an extension of UK membership; the latter would entail an extension of membership long enough to require UK participation in the European Parliament elections in late May, according to the Commission President). An election would not necessarily provide a decisive result.

It’s impossible to predict developments, but several key points should be emphasised. First of all, Remainers should keep in mind that a vote against the withdrawal agreement is not a ‘vote to stop Brexit’. Only revocation of the notification of withdrawal would do that. If there is insufficient support for revocation by the Prime Minister/Parliament or to hold another referendum, then Brexit will take place. Indeed, in that scenario a vote against the withdrawal agreement is actually a vote for no deal.

Secondly, a vote against no deal does not stop a no deal outcome happening. It’s politically relevant, but legally irrelevant. No deal is the default outcome. It will happen unless a withdrawal agreement is approved or the notification is revoked.

Thirdly, an extension delays a no deal outcome, but is not a resolution in itself. The same basic choices between no deal, a withdrawal agreement and revocation will still exist, but at a later date.

Barring a spectacular U-turn by the EU, in my view the most obvious landing zone for a package which the Commons might support is set out above: a future customs union with additional workers’ rights protections, set out slightly more precisely as the outcome in the political declaration. This is only achievable on the basis of Remainers accepting that Brexit is going to happen in the absence of support to overturn it, along with either the Conservative party splitting or a Labour government following an election. Whether any of these outcomes is plausible remains to be seen.

Barnard & Peers: chapter 27

Photo credit: parliament.uk