Analysis 4 of the Brexit deal: Dispute settlement and the EU/UK Trade and Cooperation Agreement

 

Professor Steve Peers, University of Essex

Introduction and overview

A key part of the ‘Brexit deal’ – officially known as the EU/UK Trade and Cooperation Agreement (TCA) – is the issue of dispute settlement. This blog post is a detailed annotation of the treaty’s dispute settlement rules. I have also provided this summary of the blog post at the outset. (The blog post was also updated on April 29 2021 to refer also to the final Article numbers of the TCA)

This blog post is the fourth in the series of analyses of the TCA – following on from my overview of the TCA, Professor Tamara Hervey’s analysis of the social security provisions, and my analysis of the links between the TCA and human rights. (Update: a later blog post covers environment and climate change)

As a reminder, the TCA is a separate treaty from the withdrawal agreement, which continues to apply between the UK and the EU. The withdrawal agreement has its own rules on dispute settlement, which I discussed in a detailed annotation here. I have used them as a point of comparison for the TCA dispute settlement rules. (As we’ll see, there’s also a link between the two treaties: a failure to comply with a ruling relating to the withdrawal agreement can lead to retaliation under the TCA).

Like the withdrawal agreement dispute settlement rules, the TCA rules have the same basic structure as WTO dispute settlement. I’ve explored that comparison in more detail in the blog post on withdrawal agreement dispute settlement, but the basic idea is that if the parties have a complaint, they first of all enter into consultations. If the consultations don’t lead to agreement, either side can trigger arbitration. If the arbitrators rule that one side has breached the agreement, in principle that side has to comply with the ruling within a reasonable period. If it doesn’t comply by the deadline, the winning side can invoke proportionate retaliation against the losing side by withdrawing benefits under the agreement. If the losing side later complies with the ruling, the winning side has to stop suspending those benefits. If there’s a dispute about whether the losing side has fully complied with the ruling, or whether the retaliation by the winning side was proportionate, or what is a reasonable time to comply with the ruling, the arbitrators can decide that too.

Unlike the WTO system, there’s no appeal body under either the withdrawal agreement or the TCA (this is the part of the WTO system that’s been blocked by Trump; the EU and several other WTO Members – apparently not including the UK yet – have devised a ‘work-around’ the Trump block, and it remains to be seen if the incoming Biden administration continues Trump’s approach).

One key point of difference between the withdrawal agreement and TCA as regards dispute settlement is the role of the CJEU. In the withdrawal agreement, the CJEU had its usual jurisdiction regarding the UK during the transition period. Now that period has ended, the dispute settlement rules start to apply, but the CJEU still retains some limited jurisdiction. Moreover, dispute settlement and the CJEU are linked – because the dispute settlement arbitrators have to ask the CJEU questions about the interpretation of EU law in the event that a dispute which reaches them concerns a ‘concept or provision’ of EU law.

The TCA, on the other hand, provides for CJEU jurisdiction only as regards UK participation in EU programmes – and that’s it. The TCA arbitrators don’t need to ask the CJEU any questions about EU law, because there’s no other direct reference to EU law in the TCA. (It is, however, possible that the CJEU will be involved with disputes concerning the TCA on the EU side – but its rulings won’t bind the UK, except as regards participation in EU programmes).

 A second key point of difference is the complexity of the main dispute settlement system. Leaving aside the overlap with CJEU jurisdiction and links to the CJEU, the withdrawal agreement provides for a single dispute settlement system with no variations or exclusions. The TCA, on the other hand, provides for multiple variations upon the dispute settlement system and exclusions from its scope – including some entirely different forms of dispute settlement for certain issues.

Some of these special rules are set out in the text of the dispute settlement rules, annotated in this blog post, and some of them appear separately in the TCA. For the latter, I have added two additional annexes which examine the details of those rules – which concern the ‘level playing field’ and fisheries. I have not examined the separate dispute settlement rules on criminal law, because they provide for a purely political form of dispute settlement, with no recourse to arbitration.

In practice, on the one hand, the EU prefers to avoid formally using dispute settlement systems set up under its FTAs with non-EU countries; but on the other hand, it makes frequent use of the WTO dispute settlement system, as both ‘plaintiff’ and ‘defendant’. It remains to be seen whether the EU/UK relationship resembles the informal political dispute settlement process that characterises EU FTAs, or the more litigious environment that exemplifies the EU’s WTO membership.  Lawyers (and law professors) might salivate at the prospect of the latter, but international relations specialists might argue that the former is more stable – pointing to the Trump saga by way of example. 

 

Annex I: the general dispute settlement rules

PART SIX: DISPUTE SETTLEMENT AND HORIZONTAL PROVISIONS

 TITLE I: DISPUTE SETTLEMENT

Chapter 1: General provisions

Article 734 (ex-INST.9): Objective

The objective of this Title is to establish an effective and efficient mechanism for avoiding and settling disputes between the Parties concerning the interpretation and application of this Agreement and supplementing agreements, with a view to reaching, where possible, a mutually agreed solution.

Note: this is similar, but not quite identical, to the purpose of the withdrawal agreement dispute settlement provisions (see Article 167 of that agreement).

Article 735 (ex-INST.10): Scope

1. This Title applies, subject to paragraphs 2, 3, 4 and 5, to disputes between the Parties concerning the interpretation and application of the provisions of this Agreement or of any supplementing agreement (“covered provisions”).

2. The covered provisions shall include all provisions of this Agreement and of any supplementing agreement with the exception of:

(a) Article 32(1) to (6) and Article 36 (ex-paragraphs 1 to 6 of Article GOODS.17 [Trade remedies] and Article GOODS.21 [Cultural property] of Title I of Heading One Part Two);

(b) Annex 12 (ex-TBT-X [Medicinal products]);

(c) Title VII [Small and medium sized enterprises] of Heading one of Part Two;

(d) Title X [Good regulatory practices and regulatory cooperation] of Heading One of Part Two;

(e) Article 355(1), (2) and (4) (ex-paragraphs 1, 2 and 4 of Article LPFS.1.1 [Principles and objectives]) Article 356(1) and (3) (ex-paragraphs 1 and 3 of Article LPFS.1.2 [Right to regulate, precautionary approach and scientific and technical information] of Chapter 1 [General provisions]), Chapter 2  of Title XI of Heading One of Part Two [Competition policy], Articles 371 and 372 (ex-LPFS.3.9 [Independent authority or body and cooperation] and LPFS.3.10 [Courts and tribunals] of Chapter 2 [Subsidy control]), Chapter 5 of Title XI of Heading One of Part Two [Taxation - Level Playing Field] , and Article 411(4) to (9) (ex-paragraphs 4 to 9 of Article LPFS.9.4 [Rebalancing] of Chapter 9 [Horizontal and institutional provisions] of Title XI [Level playing field for open and fair competition and sustainable development] of Heading One of Part Two);

(f) Part Three [Law enforcement and judicial cooperation in criminal matters], including when applying in relation to situations governed by other provisions of this Agreement;

(g) Part Four [Thematic cooperation];

(h) Title II [Basis for cooperation] of Part Six [Dispute settlement and horizontal provisions];

(i) Article 782 (ex-FINPROV.10A [Interim provision for transmission of personal data to the United Kingdom] of Part Seven); and

(j) the Agreement on security procedures for exchanging and protecting classified information; 

3. The Partnership Council may be seized by a Party with a view to resolving a dispute with respect to obligations arising from the provisions referred to in paragraph 2.

4. Article 736 (ex-INST.11 [Exclusivity]) shall apply to the provisions referred to in paragraph 2.

5. Notwithstanding paragraphs 1 and 2, this Title shall not apply with respect to disputes concerning the interpretation and application of the provisions of the Protocol on Social Security Coordination or its annexes in individual cases.

Note: there is no equivalent provision in the withdrawal agreement, as it has a single set of dispute settlement provisions (leaving aside the overlap with the CJEU’s remaining jurisdiction in that agreement).

The first exclusion relates to the bulk of the provision on trade remedies – ie anti-dumping law, anti-subsidy rules and economic safeguards, where there is a cross-reference to WTO law (so WTO dispute settlement would be available instead). However, note that the TCA also has its own rules on two of these issues (subsidies and safeguards), which are subject to TCA dispute settlement, albeit with some different rules in the case of subsidies.

It also excludes the provisions on cultural goods from dispute settlement. Note that these rules only apply to cultural goods taken after 1993 – so would not, for instance, apply to the Parthenon marbles. There is no alternative dispute settlement process here.

The second exclusion concerns the annex on medical products (which was actually Annex TBT-2, not TBT-X, in the previous numbering). There is no alternative dispute settlement process there.

The third exclusion concerns the rather vague rules on small and medium-sized business in the trade heading. There is no alternative dispute settlement process here either.

The fourth exclusion concerns the somewhat more concrete title on regulatory cooperation, which also forms part of the trade heading. Again, there is no alternative dispute settlement process.

The fifth exclusion concerns various aspects of the level playing field (LPF) rules: some introductory rules, competition law, some parts of the subsidies rules, taxation, and the ‘future review’ part of the rebalancing clause on future divergences on labour, environmental and subsidies law. This means that the rest of the dispute settlement clauses apply in principle to the LPF clauses – but note that there are variations from the normal dispute settlement rules for those LPF issues either in the dispute settlement part of the treaty or in the LPF part of the treaty, discussed below and in Annex II. For the LPF issues excluded entirely from the dispute settlement rules, there is no alternative dispute settlement process.

The sixth exclusion is the whole of part Three of the agreement, on criminal law. This Part has its own dispute settlement rules, which are essentially political. 

The seventh exclusion is the whole of part Four of the agreement, on health security and ‘cyber’ issues. It does not have its own dispute settlement rules.

The eighth exclusion is the list of issues on which the EU/UK relationship is based. However, the process for addressing some of the issues concerned – described as ‘essential elements’ of the relationship – is not excluded from the dispute settlement rules.

The ninth exclusion is the short-term transition period – lasting only a maximum of six months – in which EU data protection law still applies to the UK while the EU Commission considers adopting an ‘adequacy decision’.

Finally, the tenth exclusion relates to the separate UK/EU treaty on the exchange of classified information, which provides for settlement of disputes via consultations (Article 18). There is no express reference to the separate UK/Euratom treaty: note that it has its own simplified form of dispute settlement, including possible recourse to arbitration (Article 21).

Note that political dispute settlement is still possible as regards these excluded issues (para 3). Moreover, the parties cannot settle their disputes about these excluded provisions in any other dispute settlement system outside the scope of the TCA (para 4): they are limited to discussing these disputes in the Partnership Council or using the alternative dispute settlement rules that exist in the treaty itself (regarding criminal law, for instance).

A different form of exclusion applies as regards social security (para 5). The social security rules as such are not outside the scope of dispute settlement; but the dispute settlement system cannot be used to resolve ‘individual cases’. 

Note that, as discussed below, it is not possible to retaliate for a breach of (for instance) the trade provisions as regards any of the areas excluded from the scope of the dispute settlement rules.

Article 736 (ex-INST.11): Exclusivity

The Parties undertake not to submit a dispute between them regarding the interpretation or application of provisions of this Agreement or of any supplementing agreement to a mechanism of settlement other than those provided for in this Agreement.

Note: the wording is slightly different, but this is essentially the same rule as found in Article 168 of the withdrawal agreement.

Article 737 (ex-INST.12): Choice of forum in case of a substantially equivalent obligation under another international agreement

1. If a dispute arises regarding a measure allegedly in breach of an obligation under this Agreement or any supplementing agreement and of a substantially equivalent obligation under another international agreement to which both Parties are party, including the WTO Agreement, the Party seeking redress shall select the forum in which to settle the dispute.

2. Once a Party has selected the forum and initiated dispute settlement procedures either under this Title or under another international agreement, that Party shall not initiate such procedures under the other international agreement with respect to the particular measure referred to in paragraph 1, unless the forum selected first fails to make findings for procedural or jurisdictional reasons.

3. For the purposes of this Article:

(a) dispute settlement procedures under this Title are deemed to be initiated by a Party's request for the establishment of an arbitration tribunal under Article 739 (ex-INST.14 [Arbitration procedures]);

(b) dispute settlement procedures under the WTO Agreement are deemed to be initiated by a Party’s request for the establishment of a panel under Article 6 of the Understanding on Rules and Procedure Governing the Settlement of Disputes of the WTO; and

(c) dispute settlement procedures under any other agreement are deemed to be initiated if they are initiated in accordance with the relevant provisions of that agreement.

4. Without prejudice to paragraph 2, nothing in this Agreement or any supplementing agreement shall preclude a Party from suspending obligations authorised by the Dispute Settlement Body of the WTO or authorised under the dispute settlement procedures of another international agreement to which the Parties are party. The WTO Agreement or any other international agreement between the Parties shall not be invoked to preclude a Party from suspending obligations under this Title.

Note: there is no equivalent provision in the withdrawal agreement, and it is not explicit whether this provision applies to disputes which might fall within the scope of both the withdrawal agreement and the TCA (relating to goods trade or State aid as regards the earlier treaty’s Northern Ireland protocol, for instance). At first sight, the withdrawal agreement is ‘another international agreement to which both Parties are party’. However, since there is a link anyway between the withdrawal agreement dispute settlement system and retaliation on the basis of the TCA, as discussed further below, the distinction may not matter that much in practice.

Para 1 gives the party seeking a remedy the option of which dispute settlement system to use in the event of overlapping arguments under multiple treaties. To avoid infringing the exclusivity clause, a party which invoked a system other than the TCA would have to take care that it explicitly makes its arguments in that other dispute settlement system without referring to the TCA. The WTO is expressly envisaged as one example of an overlapping system, but the wording is not exhaustive (‘including’). The most obvious example of an overlapping argument would be cases where the trade in goods provisions of the TCA expressly incorporate a WTO provision.

Para 2 prevents the complaining party from bringing multiple proceedings under different systems: once it has made its choice of forum, it must stick with it. That party can, however, bring a multiple complaint if the first forum it chose refuses to rule on the merits of its complaints. Para 3 defines how this rule applies. Presumably this prevents not only multiple proceedings brought roughly simultaneously, but also an attempt to bring a complaint to Forum B after Forum A has rejected the essentially identical complaint on the merits.

Para 4 means that the existence of the TCA does not stand in the way of either side suspending its obligations after using the WTO dispute settlement process or another treaty (such as the replacement agreement for the WTO appellate body – if the UK joins the EU as a party to it). This is equally true in reverse: the WTO dispute settlement process does not stand in the way of either side suspending its obligations pursuant to the TCA dispute settlement rules.

 

Chapter 2: Procedure

Article 738 (ex-INST.13): Consultations

1. If a Party (“the complaining Party”) considers that the other Party (“the respondent Party”) has breached an obligation under this Agreement or under any supplementing agreement, the Parties shall endeavour to resolve the matter by entering into consultations in good faith, with the aim of reaching a mutually agreed solution.

2. The complaining Party may seek consultations by means of a written request delivered to the respondent Party. The complaining Party shall specify in its written request the reasons for the request, including the identification of the measures at issue and the legal basis for the request, and the covered provisions it considers applicable.

3. The respondent Party shall reply to the request promptly, and in any case no later than 10 days after the date of its delivery. Consultations shall be held within 30 days of the date of delivery of the request in person or by any other means of communication agreed by the Parties. If held in person, consultations shall take place in the territory of the respondent Party, unless the Parties agree otherwise.

4. The consultations shall be deemed concluded within 30 days of the date of delivery of the request, unless the Parties agree to continue consultations.

5. Consultations on matters of urgency, including those regarding perishable goods or seasonal goods or services, shall be held within 20 days of the date of delivery of the request. The consultations shall be deemed concluded within those 20 days unless the Parties agree to continue consultations.

6. Each Party shall provide sufficient factual information to allow a complete examination of the measure at issue, including an examination of how that measure could affect the application of this Agreement or any supplementing agreement. Each Party shall endeavour to ensure the participation of personnel of their competent authorities who have expertise in the matter subject to the consultations.

7. For any dispute concerning an area other than Titles I to VII, Chapter 4 [Energy and raw materials] of Title VIII, Titles IX to XII of Heading One or Heading Six of Part Two, at the request of the complaining Party, the consultations referred to in paragraph 3 of this Article shall be held in the framework of a Specialised Committee or of the Partnership Council. The Specialised Committee may at any time decide to refer the matter to the Partnership Council. The Partnership Council may also seize itself of the matter. The Specialised Committee, or, as the case may be, the Partnership Council, may resolve the dispute by a decision. The time periods referred to in paragraph 3 of this Article shall apply. The venue of meetings shall be governed by the rules of procedure of the Specialised Committee or, as the case may be, the Partnership Council.

8. Consultations, and in particular all information designated as confidential and positions taken by the Parties during consultations, shall be confidential, and shall be without prejudice to the rights of either Party in any further proceedings.

Note: para 1 is very similar to Article 169 of the withdrawal agreement. The following paras are, however, far more detailed than the withdrawal agreement. The time period for consultations (deemed to be concluded after 30 days, or 20 days in urgent cases, unless the Parties agree to continue them) is shorter than under Article 170 of the withdrawal agreement, which provides for three months of talks before arbitration can be triggered unilaterally.

Article 739 (ex-INST.14): Arbitration procedure

1. The complaining Party may request the establishment of an arbitration tribunal if:

(a) the respondent Party does not respond to the request for consultations within 10 days of the date of its delivery;

(b) consultations are not held within the time periods referred to in Article 738(3), (4) or (5) (ex-INST.13(3), (4) or (5) [Consultations]);

(c) the Parties agree not to have consultations; or

(d) consultations have been concluded without a mutually agreed solution having been reached.

2. The request for the establishment of the arbitration tribunal shall be made by means of a written request delivered to the respondent Party. In its request, the complaining Party shall explicitly identify the measure at issue and explain how that measure constitutes a breach of the covered provisions in a manner sufficient to present the legal basis for the complaint clearly.

Note: as noted above, the time frames for triggering arbitration (ie, the cross-references in para 1) are shorter than the three months under the withdrawal agreement. Para 2 is similar, but not identical, to part of Article 170(1) of the withdrawal agreement. One difference (which cuts across the whole TCA dispute settlement process) is that the TCA, unlike the withdrawal agreement, makes no provision for the logistical support of the Permanent Court of Arbitration in the Hague.

Article 740 (ex-INST.15): Establishment of an arbitration tribunal

1. An arbitration tribunal shall be composed of three arbitrators.

2. No later than 10 days after the date of delivery of the request for the establishment of an arbitration tribunal, the Parties shall consult with a view to agreeing on the composition of the arbitration tribunal.

3. If the Parties do not agree on the composition of the arbitration tribunal within the time period provided for in paragraph 2, each Party shall appoint an arbitrator from the sub-list for that Party established pursuant to Article 752 (ex-INST.27 [Lists of arbitrators]) no later than five days after the expiry of the time period provided for in paragraph 2 of this Article. If a Party fails to appoint an arbitrator from its sub-list within that time period, the co-chair of the Partnership Council from the complaining Party shall select, no later than five days after the expiry of that time period, an arbitrator by lot from the sub-list of the Party that has failed to appoint an arbitrator. The co-chair of the Partnership Council from the complaining Party may delegate such selection by lot of the arbitrator.

4. If the Parties do not agree on the chairperson of the arbitration tribunal within the time period provided for in paragraph 2 of this Article, the co-chair of the Partnership Council from the complaining Party shall select, no later than five days after the expiry of that time period, the chairperson of the arbitration tribunal by lot from the sub-list of chairpersons established pursuant to Article 752 (ex-INST.27 [Lists of arbitrators]). The co-chair of the Partnership Council from the complaining Party may delegate such selection by lot of the chairperson of the arbitration tribunal.

5. Should any of the lists provided for in Article 752 (ex-INST.27 [Lists of arbitrators]) not be established or not contain sufficient names at the time a selection is made pursuant to paragraphs 3 or 4 of this Article, the arbitrators shall be selected by lot from the individuals who have been formally proposed by one Party or both Parties in accordance with Annex 48 (ex-INST-X [Rules of procedure]).

6. The date of establishment of the arbitration tribunal shall be the date on which the last of the three arbitrators has notified to the Parties the acceptance of his or her appointment in accordance with Annex 48.

Note: Three arbitrators will serve on a TCA arbitration tribunal, compared to five under the withdrawal agreement (para 1, compared to Article 171(3) of the withdrawal agreement). The withdrawal agreement provides for a panel to be set up within 15 days (Article 171(4) of the withdrawal agreement), rather than consultation within 10 days under the TCA (para 2). The TCA then provides for a process of setting up the tribunal quickly if the parties don’t agree on its members (paras 3 and 4). Under the TCA, the default if the list of arbitrators has not yet been decided is to take names from the proposed list by one or both parties (para 5). It is not clear what happens if one party tries to frustrate the process by not proposing any candidates: does this block the arbitration process because there must always be a member from each party, or does the arbitration go ahead with a second member from the other party? That prospect would certainly be a deterrent to trying to block the process.

Note that the default under the withdrawal agreement is to involve the Permanent Court of Arbitration in selecting the arbitrators, if the parties cannot agree or do not suggest arbitrators (Article 171(5) to (9) of the withdrawal agreement). In practice, the list of arbitrators for that agreement has now been adopted by a Joint Committee decision.

There are fast-track rules derogating from this clause in certain cases: see Article 760 (ex-INST.34B), discussed below.

Article 741 (ex-INST.16): Requirements for arbitrators

1. All arbitrators shall:

(a) have demonstrated expertise in law and international trade, including on specific matters covered by Titles I to VII, Chapter 4 [Energy and raw materials] of Title VIII, Titles IX to XII of Heading One [Trade] of Part Two or Heading Six [Other provisions] of Part Two, or in law and any other matter covered by this Agreement or by any supplementing agreement and, in the case of a chairperson, also have experience in dispute settlement procedures;

(b) not be affiliated with or take instructions from either Party;

(c) serve in their individual capacities and not take instructions from any organisation or government with regard to matters related to the dispute; and

(d) comply with Annex 49 (ex-INST-X [Code of Conduct]).

2. All arbitrators shall be persons whose independence is beyond doubt, who possess the qualifications required for appointment to high judicial office in their respective countries or who are jurisconsults of recognised competence.

3. In view of the subject-matter of a particular dispute, the Parties may agree to derogate from the requirements listed in point (a) of paragraph 1.

Note: this Article is similar, but not identical to, Article 171(2) of the withdrawal agreement, which referred more generally to expertise in EU law and public international law. See also Article 181(1) of the withdrawal agreement, on requirements for independence.

Article 742 (ex-INST.17): Functions of the arbitration tribunal

The arbitration tribunal:

(a) shall make an objective assessment of the matter before it, including an objective assessment of the facts of the case and the applicability of, and conformity of the measures at issue with, the covered provisions;

(b) shall set out, in its decisions and rulings, the findings of facts and law and the rationale behind any findings that it makes; and

(c) should consult regularly with the Parties and provide adequate opportunities for the development of a mutually agreed solution.

Article 743 (ex-INST.18): Terms of reference

1. Unless the Parties agree otherwise no later than five days after the date of the establishment of the arbitration tribunal, the terms of reference of the arbitration tribunal shall be:

"to examine, in the light of the relevant covered provisions of this Agreement or of a supplementing agreement, the matter referred to in the request for the establishment of the arbitration tribunal, to decide on the conformity of the measure at issue with the provisions referred to in Article 735 (ex-INST.10 [Scope]) and to issue a ruling in accordance with Article 745 (ex-INST.20 [Ruling of the arbitration tribunal])".

2. If the Parties agree on terms of reference other than those referred to in paragraph 1, they shall notify the agreed terms of reference to the arbitration tribunal within the time period referred to in paragraph 1.

Article 744 (ex-INST.19): Urgent proceedings

1. If a Party so requests, the arbitration tribunal shall decide, no later than 10 days after the date of its establishment, whether the case concerns matters of urgency.

2. In cases of urgency, the applicable time periods set out in Article 745 (ex-INST.20 [Ruling of the Arbitration Tribunal]) shall be half the time prescribed therein.

Note: this compares to Article 173 of the withdrawal agreement, in which the usual deadline of 12 months for a ruling is cut to 6 months for urgent cases. Under the TCA, the final deadline of 160 days is cut to 80 days for urgent cases. The tribunal has 10 days to decide on whether the case is urgent (the withdrawal agreement provides for 15 days for this). 

 Article 745 (ex-INST.20): Ruling of the arbitration tribunal

1. The arbitration tribunal shall deliver an interim report to the Parties within 100 days after the date of establishment of the arbitration tribunal. If the arbitration tribunal considers that this deadline cannot be met, the chairperson of the arbitration tribunal shall notify the Parties in writing, stating the reasons for the delay and the date on which the arbitration tribunal plans to deliver its interim report. The arbitration tribunal shall not deliver its interim report later than 130 days after the date of establishment of the arbitration tribunal under any circumstances.

2. Each Party may deliver to the arbitration tribunal a written request to review precise aspects of the interim report within 14 days of its delivery. A Party may comment on the other Party's request within six days of the delivery of the request.

3. If no written request to review precise aspects of the interim report is delivered within the time period referred to in paragraph 2, the interim report shall become the ruling of the arbitration tribunal.

4. The arbitration tribunal shall deliver its ruling to the Parties within 130 days of the date of establishment of the arbitration tribunal. When the arbitration tribunal considers that that deadline cannot be met, its chairperson shall notify the Parties in writing, stating the reasons for the delay and the date on which the arbitration tribunal plans to deliver its ruling. The arbitration tribunal shall not deliver its ruling later than 160 days after the date of establishment of the arbitration tribunal under any circumstances.

5. The ruling shall include a discussion of any written request by the Parties on the interim report and clearly address the comments of the Parties.

6. For greater certainty, a ‘ruling’ or ‘rulings’ as referred to in Articles 742, 743 and 753 (ex-INST.17 [Functions of the arbitration tribunal], INST.18 [Terms of reference], INST.28 [Replacement of arbitrators]) and Article 754 (ex-INST.29) (1), (3), (4) and (6) [Arbitration tribunal rulings and decisions] shall be understood to refer also to the interim report of the arbitration tribunal.

Note: as noted above, this compares to Article 173 of the withdrawal agreement, which has a usual deadline of 12 months for a ruling. Under the TCA, the final deadline is 160 days. Unlike the withdrawal agreement, the TCA process includes circulation of an interim ruling which the parties can comment on.

There are fast-track rules derogating from this clause in certain cases: see Article 760 (ex-INST 34B), discussed below.

 

Chapter 3: Compliance

Article 746 (ex-INST.21): Compliance measures

1. If, in its ruling referred to in Article 745(4) (ex-INST.20(1) [Ruling of the arbitration tribunal]), the arbitration tribunal finds that the respondent Party has breached an obligation under this Agreement or under any supplementing agreement, that Party shall take the necessary measures to comply immediately with the ruling of the arbitration tribunal in order to bring itself in compliance with the covered provisions.

2. The respondent Party, no later than 30 days after delivery of the ruling, shall deliver a notification to the complaining Party of the measures which it has taken or which it envisages to take in order to comply.

Note: this is similar to the obligation to comply with an arbitration ruling set out in Article 175 of the withdrawal agreement.

Article 747 (ex-INST.22): Reasonable Period of Time

1. If immediate compliance is not possible, the respondent Party, no later than 30 days after delivery of the ruling referred to in Article 745(4) (ex-INST.20(1) [Ruling of the arbitration tribunal]), shall deliver a notification to the complaining Party of the length of the reasonable period of time it will require for compliance with the ruling referred to in Article 745(4). The Parties shall endeavour to agree on the length of the reasonable period of time to comply.

2. If the Parties have not agreed on the length of the reasonable period of time, the complaining Party may, at the earliest 20 days after the delivery of the notification referred to in paragraph 1, request in writing that the original arbitration tribunal determines the length of the reasonable period of time. The arbitration tribunal shall deliver its decision to the Parties within 20 days of the date of delivery of the request.

3. The respondent Party shall deliver a written notification of its progress in complying with the ruling referred to in Article 745(4) to the complaining Party at least one month before the expiry of the reasonable period of time.

4. The Parties may agree to extend the reasonable period of time.

Note: this is nearly identical in substance to Article 176 of the withdrawal agreement, except the process is speeded up. The 30-day period for the losing party to indicate how long it thinks it will need to comply matches the withdrawal agreement (para 1; Article 176(1) of the withdrawal agreement). Unlike the withdrawal agreement, there is a minimum period of 20 days for the winning party to dispute the losing party’s proposed timetable (para 2; Article 176(2) of the withdrawal agreement sets a 40-day maximum). Arbitration on this issue is quicker than under the withdrawal agreement (20 days under para 2; 40 or 60 days under Article 176(2) and (3) of the withdrawal agreement). The rule on the losing party notifying how it is getting on with compliance one month before the deadline is the same in both treaties (para 3; Article 176(4) of the withdrawal agreement). Both treaties allow for joint agreement to extend the reasonable period of time (para 4; Article 176(5) of the withdrawal agreement).

Article 748 (ex-INST.23): Compliance Review

1. The respondent Party shall, no later than the date of expiry of the reasonable period of time, deliver a notification to the complaining Party of any measure that it has taken to comply with the ruling referred to in Article 745(4) (ex-INST.20(1) [Ruling of the arbitration tribunal]).

2. When the Parties disagree on the existence of, or the consistency with the covered provisions of, any measure taken to comply, the complaining Party may deliver a request, which shall be in writing, to the original arbitration tribunal to decide on the matter. The request shall identify any measure at issue and explain how that measure constitutes a breach of the covered provisions in a manner sufficient to present the legal basis for the complaint clearly. The arbitration tribunal shall deliver its decision to the Parties within 45 days of the date of delivery of the request.

Note: this is essentially identical to Article 177 of the withdrawal agreement, except that the time period for arbitrators to rule on whether the losing party has complied with the ruling is 45 days under the TCA, whereas it is 90 days under the withdrawal agreement.

There are fast-track rules derogating from this clause in certain cases: see Article INST 34B, discussed below.

Article 749 (ex-INST.24): Temporary Remedies

1. The respondent Party shall, at the request of and after consultations with the complaining Party, present an offer for temporary compensation if:

(a) the respondent Party delivers a notification to the complaining Party that it is not possible to comply with the ruling referred to in Article 745(4) (ex-INST.20(1) [Ruling of the arbitration tribunal]); or

(b) the respondent Party fails to deliver a notification of any measure taken to comply within the deadline referred to in Article 746 (ex-INST.21 [Compliance Measures]) or before the date of expiry of the reasonable period of time; or

(c) the arbitration tribunal finds that no measure taken to comply exists or that the measure taken to comply is inconsistent with the covered provisions.

2. In any of the conditions referred to in points (a), (b) and (c) of paragraph 1, the complaining Party may deliver a written notification to the respondent Party that it intends to suspend the application of obligations under the covered provisions if:

(a) the complaining Party decides not to make a request under paragraph 1; or

(b) the Parties do not agree on the temporary compensation within 20 days after the expiry of the reasonable period of time or the delivery of the arbitration tribunal decision under Article 748 (ex-INST.23 [Compliance Review]) if a request under paragraph 1 is made. The notification shall specify the level of intended suspension of obligations.

3. Suspension of obligations shall be subject to the following conditions:

(a) Obligations under Heading Four [Social security coordination and visas for short-term visits]of Part Two, the Protocol on Social Security Coordination or its annexes or Part Five [Union programmes] may not be suspended under this Article;

(b) By derogation from point (a), obligations under Part Five [Union programmes] may be suspended only where the ruling referred to in Article 745(4) (ex-INST.20(1) [Ruling of the arbitration tribunal] )concerns the interpretation and implementation of Part Five [Union programmes];

(c) Obligations outside Part Five [Union programmes] may not be suspended where the ruling referred to in Article 745(4) concerns the interpretation and implementation of Part Five [Union programmes]; and

(d) Obligations under Title II [Services and Investment] of Heading One of Part Two in respect of financial services may not be suspended under this Article, unless the ruling referred to in Article 745(4) concerns the interpretation and application of obligations under Title II [Services and Investment] of Heading One of Part Two in respect of financial services.

4. Where a Party persists in not complying with a ruling of an arbitration panel established under an earlier agreement concluded between the Parties, the other Party may suspend obligations under the covered provisions referred to in Article 735 (ex-INST.10 [Scope]). With the exception of the rule in point (a) of paragraph 3, all rules relating to temporary remedies in case of non-compliance and to review of any such measures shall be governed by the earlier agreement.

5. The suspension of obligations shall not exceed the level equivalent to the nullification or impairment caused by the violation.

6. If the arbitration tribunal has found the violation in Heading One [Trade] or Heading Three [Road] of Part Two, the suspension may be applied in another Title of the same Heading as that in which the tribunal has found the violation, in particular if the complaining party is of the view that such suspension is effective in inducing compliance.

7. If the arbitration tribunal has found the violation in Heading Two [Aviation]:

(a) the complaining party should first seek to suspend obligations in the same Title as that in which the arbitration tribunal has found the violation;

(b) if the complaining party considers that it is not practicable or effective to suspend obligations with respect to the same Title as that in which the tribunal has found the violation, it may seek to suspend obligations in the other Title under the same Heading.

8. If the arbitration tribunal has found the violation in Heading One [Trade], Heading Two [Aviation], Heading Three [Road] or Heading Five [Fisheries] of Part Two, and if the complaining party considers that it is not practicable or effective to suspend obligations within the same Heading as that in which the arbitration tribunal has found the violation, and that the circumstances are serious enough, it may seek to suspend obligations under other covered provisions.

9. In the case of point (b) of paragraph 7 and paragraph 8, the complaining Party shall state the reasons for its decision.

10. The complaining Party may suspend the obligations 10 days after the date of delivery of the notification referred to in paragraph 2 unless the respondent Party made a request under paragraph 11.

11. If the respondent Party considers that the notified level of suspension of obligations exceeds the level equivalent to the nullification or impairment caused by the violation or that the principles and procedures set forth in point (b) of paragraph 7, paragraph 8 or paragraph 9 have not been followed, it may deliver a written request to the original arbitration tribunal before the expiry of the 10 day period set out in paragraph 10 to decide on the matter. The arbitration tribunal shall deliver its decision on the level of the suspension of obligations to the Parties within 30 days of the date of the request. Obligations shall not be suspended until the arbitration tribunal has delivered its decision. The suspension of obligations shall be consistent with that decision.

12. The arbitration tribunal acting pursuant to paragraph 11 shall not examine the nature of the obligations to be suspended but shall determine whether the level of such suspension exceeds the level equivalent to the nullification or impairment caused by the violation. However, if the matter referred to arbitration includes a claim that the principles and procedures set forth in point (b) of paragraph 7, paragraph 8 or paragraph 9 have not been followed, the arbitration tribunal shall examine that claim. In the event the arbitration tribunal determines that those principles and procedures have not been followed, the complaining party shall apply them consistently with point (b) of paragraph 7, paragraph 8 and paragraph 9. The parties shall accept the arbitration tribunal's decision as final and shall not seek a second arbitration procedure. This paragraph shall under no circumstances delay the date as of which the complaining Party is entitled to suspend obligations under this Article.

13. The suspension of obligations or the compensation referred to in this Article shall be temporary and shall not be applied after:

(a) the Parties have reached a mutually agreed solution pursuant to Article 756 (ex-INST.31 [Mutually agreed solution]);

(b) the Parties have agreed that the measure taken to comply brings the respondent Party into compliance with the covered provisions; or

(c) any measure taken to comply which the arbitration tribunal has found to be inconsistent with the covered provisions has been withdrawn or amended so as to bring the respondent Party into compliance with those covered provisions.

Note: Unlike the withdrawal agreement (Article 178(1)), there is no prospect of imposing fines upon a losing party that has not complied with its obligation to comply with a ruling within a reasonable period of time. Instead, the only remedy, in the absence of agreed compensation (para 1), is suspension of obligations under the TCA, ie retaliation, which is also a possibility under certain circumstances under the withdrawal agreement (Article 178(2)). This difference means that the retaliation can occur more quickly under the TCA than under the withdrawal agreement.

The TCA also has more complex limits on retaliation than under the withdrawal agreement – which only prohibits retaliation as regards citizens’ rights (Article 178(2)(a)). First of all, retaliation can only take place as regards the ‘covered provisions’ of the TCA (para 2) – which means that it can only apply to the parts of the TCA covered by the main dispute settlement rules (see the definition of ‘covered provisions’ in Article INST.10, discussed above). For instance, this means that a breach of the treaty regarding trade cannot lead to suspension of the provisions regarding criminal law, because the latter are not part of the ‘covered provisions’.

Secondly, the provisions on social security and visas and on EU programmes cannot be suspended (para 3(a)). (This is, in a way, consistent with the withdrawal agreement exclusion of retaliatin on citizens’ rights, which also means that no retaliation is possible regarding social security under the withdrawal agreement).

However, participation in EU programmes can be suspended if the dispute concerns the issue of EU programmes (para 3(b)), and conversely retaliation where the dispute concerns EU programmes can only concern EU programmes (ie, not on trade) (para 3(c)). In other words, as far as retaliation is concerned, the provisions on EU programmes are self-contained.

Thirdly (and similarly), financial services obligations cannot be suspended unless the arbitration ruling concerns financial services (para 3(d)). It should, however, be recalled that the TCA has limited provisions on financial services.

Next, if there is a breach of the TCA as regards trade or road transport, retaliation can occur in another title of the same heading of the economic part of the treaty, ‘in particular if the complaining party is of the view that such suspension is effective in inducing compliance’ (para 6). This is a non-exhaustive test, and it is apparently up to the winning party to determine how to apply it. This means, for instance that a breach relating to trade in goods or the level playing field can be sanctioned by retaliation as regards services, digital trade, capital, intellectual property, public procurement, or energy (subject to some special rules on the level playing field discussed below, and some parts of the rules on trade not being ‘covered provisions’ for dispute settlement). For road transport, this means that there can be cross-retaliation between goods and passenger transport.

A similar rule applies to breaches regarding air transport (para 7): the winning party ‘should first seek’ to apply retaliation in the same title (the two titles are air transport and aviation safety), but may ‘seek’ to cross-retaliate against the other aviation title if it ‘considers that it is not practicable or effective to suspend obligations with respect to the same Title’.

Also, where the breach concerns trade, aviation, road transport or fisheries, the winning party can cross-retaliate as regards any covered provisions, ‘if the complaining party considers that it is not practicable or effective to suspend obligations within the same Heading as that in which the arbitration tribunal has found the violation, and that the circumstances are serious enough’ (para 8). Presumably the limits on cross-retaliation set out in para 3 continue to apply.

More broadly there is also a proportionality rule: ‘The suspension of obligations shall not exceed the level equivalent to the nullification or impairment caused by the violation.’ (para 5). Note that in the specific contexts of subsidies and fisheries, there are more detailed rules on this issue: see Article INST.34C, discussed below.

The retaliation then goes ahead unless the losing party objects that the proportionality rule is infringed by the severity of the retaliation, or that the ‘principles and procedures’ relating to cross-retaliation have not been followed (para 11), within ten days after the winning party’s notification of its intention to retaliate. This is similar to the possible review of proportionality of retaliation under the withdrawal agreement (Article 178(3), which also sets a ten-day deadline to object). Under both treaties, the request to review the retaliation has suspensive effect. As usual, the TCA provides for a shorter deadline for the arbitrators to rule on this than under the withdrawal agreement (30 days, compared to 60 days).

Under the TCA, the arbitrators can rule on whether the retaliation is excessive, whereas under the withdrawal agreement they rule on proportionality; it is not clear whether that actually means a different legal test. Also under the TCA, the winning party must adjust its planned retaliation if the arbitrators rule that it would be breaching the cross-retaliation rules (para 12). But note that the wording of the cross-retaliation rules includes a degree of discretion for the winning party; it is not clear whether the arbitrators will undertake a review of the exercise of this discretion. Remember that if the winning party is prevented from cross-retaliation by the arbitrators, it can always retaliate in a different way instead.

Under both the TCA and the withdrawal agreement, retaliation is ‘temporary’ until the original ruling of breach is complied with or the parties have otherwise agreed to settle the issue (para 13; compared to Article 178(5) of the withdrawal agreement). But there is no actual time limit so in practice ‘temporary’ could mean a long time.

Finally, note that para 4 provides for retaliation under the covered provisions of the TCA in the event of a breach of an ‘earlier agreement’. This can only refer to the withdrawal agreement, and indeed Article 178(2)(b) of that agreement foresaw this possibility. In practical terms, this means that breaches of the withdrawal agreement (in the event of non-compliance with arbitration rulings under that agreement within a reasonable time) can be sanctioned by imposing trade or other sanctions under the TCA – making the withdrawal agreement potentially easier to enforce indirectly (on the assumption that retaliation, or the prospect of it, has an impact on whether a party breaches the treaty, or keeps breaching it).

The details of that retaliation, and any review of it, are otherwise addressed in the withdrawal agreement – except that the rule against retaliating as regards social security and visa rules in the TCA also applies as regards breaches of the withdrawal agreement.

Fun fact: since dispute settlement rulings under the withdrawal agreement may have been based on the CJEU’s interpretation of EU law (see Article 174 of the withdrawal agreement), it is implicitly possible that a CJEU ruling could ultimately (but only in these specific circumstances) be the basis of trade or other retaliation under the TCA.

Article 750 (ex-INST.25): Review of any measure taken to comply after the adoption of temporary remedies

1. The respondent Party shall deliver a notification to the complaining Party of any measure it has taken to comply following the suspension of obligations or following the application of temporary compensation, as the case may be. With the exception of cases under paragraph 2, the complaining Party shall terminate the suspension of obligations within 30 days from the delivery of the notification. In cases where compensation has been applied, with the exception of cases under paragraph 2, the respondent Party may terminate the application of such compensation within 30 days from the delivery of its notification that it has complied.

2. If the Parties do not reach an agreement on whether the notified measure brings the respondent Party into compliance with the covered provisions within 30 days of the date of delivery of the notification, the complaining Party shall deliver a written request to the original arbitration tribunal to decide on the matter. The arbitration tribunal shall deliver its decision to the Parties within 46 days of the date of the delivery of the request. If the arbitration tribunal finds that the measure taken to comply is in conformity with the covered provisions, the suspension of obligations or compensation, as the case may be, shall be terminated. When relevant, the level of suspension of obligations or of compensation shall be adjusted in light of the arbitration tribunal decision.

Note: This clause provides for the arbitrators to decide whether the losing party, having been subject to retaliation, has subsequently complied with its obligations. If it has, then the retaliation has to end. It is similar to Article 179 of the withdrawal agreement. The difference is, as usual, that the TCA provides for shorter time periods: 30 days (instead of 45) to request the arbitrators to review the measure taken to comply with the ruling, and 46 days (instead of 75) for the arbitrators to rule on the issue.

 

Chapter 4: Common procedural provisions

Article 751 (ex-INST.26): Receipt of information

1. On request of a Party, or on its own initiative, the arbitration tribunal may seek from the Parties relevant information it considers necessary and appropriate. The Parties shall respond promptly and fully to any request by the arbitration tribunal for such information.

2. On request of a Party, or on its own initiative, the arbitration tribunal may seek from any source any information it considers appropriate. The arbitration tribunal may also seek the opinion of experts as it considers appropriate and subject to any terms and conditions agreed by the Parties, where applicable.

3. The arbitration tribunal shall consider amicus curiae submissions from natural persons of a Party or legal persons established in a Party in accordance with Annex 48 (ex-INST-X [Rules of Procedure]).

4. Any information obtained by the arbitration tribunal under this Article shall be made available to the Parties and the Parties may submit comments on that information to the arbitration tribunal.

Note: there is no equivalent clause in the withdrawal agreement. The TCA is potentially open to hear arguments from third parties and experts, although third parties are not parties to proceedings as such. 

Article 752 (ex-INST.27): Lists of arbitrators

1. The Partnership Council shall, no later than 180 days after the date of entry into force of this Agreement, establish a list of individuals with expertise in specific sectors covered by this Agreement or its supplementing agreements who are willing and able to serve as members of an arbitration tribunal. The list shall comprise at least 15 persons and shall be composed of three sub-lists:

(a) one sub-list of individuals established on the basis of proposals by the Union;

(b) one sub-list of individuals established on the basis of proposals by the United Kingdom; and

(c) one sub-list of individuals who are not nationals of either Party who shall serve as chairperson to the arbitration tribunal. Each sub-list shall include at least five individuals. The Partnership Council shall ensure that the list is always maintained at this minimum number of individuals.

2. The Partnership Council may establish additional lists of individuals with expertise in specific sectors covered by this Agreement or by any supplementing agreement. Subject to the agreement of the Parties, such additional lists may be used to compose the arbitration tribunal in accordance with the procedure set out in Article 740 (ex-INST.15) (3) and (5) [Establishment of an arbitration tribunal]. Additional lists shall be composed of two sub-lists:

(a) one sub-list of individuals established on the basis of proposals by the Union; and

(b) one sub-list of individuals established on the basis of proposals by the United Kingdom.

3. The lists referred to in paragraphs 1 and 2 shall not comprise persons who are members, officials or other servants of the Union institutions, of the Government of a Member State, or of the Government of the United Kingdom.

Note: the process of appointing arbitrators is comparable to Article 171(1) of the withdrawal agreement, although under the TCA the list of arbitrators is shorter and there are possibly specialised arbitrators. The deadline for the Partnership Council to adopt the list is late June; there are no provisions for what happens if a dispute is lodged in the meantime. 

Article 753 (ex-INST.28): Replacement of arbitrators

If during dispute settlement procedures under this Title, an arbitrator is unable to participate, withdraws, or needs to be replaced because that arbitrator does not comply with the requirements of the Code of Conduct, the procedure set out in Article 740 (ex-INST.15 [Establishment of the arbitration tribunal]) shall apply. The time period for the delivery of the ruling or decision shall be extended for the time necessary for the appointment of the new arbitrator.

Article 754 (ex-INST.29): Arbitration tribunal decisions and rulings

1. The deliberations of the arbitration tribunal shall be kept confidential. The arbitration tribunal shall make every effort to draft rulings and take decisions by consensus. If this is not possible, the arbitration tribunal shall decide the matter by majority vote. In no case shall separate opinions of arbitrators be disclosed.

2. The decisions and rulings of the arbitration tribunal shall be binding on the Union and on the United Kingdom. They shall not create any rights or obligations with respect to natural or legal persons.

3. Decisions and rulings of the arbitration tribunal cannot add to or diminish the rights and obligations of the Parties under this Agreement or under any supplementing agreement.

4. For greater certainty, the arbitration tribunal shall have no jurisdiction to determine the legality of a measure alleged to constitute a breach of this Agreement or of any supplementing agreement, under the domestic law of a Party. No finding made by the arbitration tribunal when ruling on a dispute between the Parties shall bind the domestic courts or tribunals of either Party as to the meaning to be given to the domestic law of that Party.

5 (ex-4A). For greater certainty, the courts of each Party shall have no jurisdiction in the resolution of disputes between the Parties under this Agreement.

6 (ex-5). Each Party shall make the rulings and decisions of the arbitration tribunal publicly available, subject to the protection of confidential information.

7 (ex-6). The information submitted by the Parties to the arbitration tribunal shall be treated in accordance with the confidentiality rules laid down in Annex 48 (ex-ANNEX-INST-X [Rules of procedure]).

Note: the provisions in paras 1, 2, and 6 – majority voting, no dissenting opinions, binding effect, rulings published – are very similar to Article 180 of the withdrawal agreement. However, the express statement that the rulings create no rights or obligations for individuals is new, as are the provisions in paras 3, 4 and 5: no ‘judicial activism’ by arbitrators, no impact on domestic law or domestic courts, no jurisdiction of the parties’ courts to resolve resolution of disputes between the parties. This is a strongly ‘dualist’ approach to the dispute settlement process – binding at international level, but not in domestic law – which reflects the UK side’s approach to sovereignty (although note that the CJEU also rejects the domestic effect of WTO dispute settlement rulings within the EU legal order).

Article 755 (ex-INST.30): Suspension and termination of the arbitration proceedings

At the request of both Parties, the arbitration tribunal shall suspend its work at any time for a period agreed by the Parties and not exceeding 12 consecutive months. The arbitration tribunal shall resume its work before the end of the suspension period at the written request of both Parties, or at the end of the suspension period at the written request of either Party. The requesting Party shall deliver a notification to the other Party accordingly. If a Party does not request the resumption of the arbitration tribunal’s work at the expiry of the suspension period, the authority of the arbitration tribunal shall lapse and the dispute settlement procedure shall be terminated. In the event of a suspension of the work of the arbitration tribunal, the relevant time periods shall be extended by the same time period for which the work of the arbitration tribunal was suspended.

Note: the strict time deadlines for arbitration can be suspended for up to 12 months if both sides agree, presumably to allow an opportunity to negotiate a diplomatic solution to a dispute instead. If the arbitrators resume their work, the clock starts ticking on the deadlines again.

Article 756 (ex-INST.31): Mutually agreed solution

1. The Parties may at any time reach a mutually agreed solution with respect to any dispute referred to in Article 735 (ex-INST.10 [Scope]).

2. If a mutually agreed solution is reached during panel proceedings, the Parties shall jointly notify the agreed solution to the chairperson of the arbitration tribunal. Upon such notification, the arbitration proceedings shall be terminated.

3. The solution may be adopted by means of a decision of the Partnership Council. Mutually agreed solutions shall be made publicly available. The version disclosed to the public shall not contain any information either Party has designated as confidential.

4. Each Party shall take the measures necessary to implement the mutually agreed solution within the agreed time period.

5. No later than the date of expiry of the agreed time period, the implementing Party shall inform the other Party in writing of any measures thus taken to implement the mutually agreed solution. 

Note: similarly to the previous provision, the TCA allows for a compromise settlement of a dispute. The withdrawal agreement alludes to this too, but does not go into detail on the process.

Article 757 (ex-INST.32): Time Periods

1. All time periods laid down in this Title shall be counted in days from the day following the act to which they refer.

2. Any time period referred to in this Title may be modified by mutual agreement of the Parties.

3. The arbitration tribunal may at any time propose to the Parties to modify any time period referred to in this Title, stating the reasons for the proposal.

Note: the strict deadlines are not as strict as they first appear, as the parties have the power to amend them (if both sides agree). This is on top of the possibility to suspend the process, as discussed above.  

Article 758 (ex-INST.34): Costs

1. Each Party shall bear its own expenses derived from the participation in the arbitration tribunal procedure.

 2. The Parties shall share jointly and equally the expenses derived from organisational matters, including the remuneration and expenses of the members of the arbitration tribunal. The remuneration of the arbitrators shall be in accordance with Annex 48 (ex-INST-ANNEX-X [Rules of procedure]).

Note: costs are not awarded to the winning party; rather, each side bears its own costs regardless of the outcome.

Article 759 (ex-INST.34A): Annexes

1. Dispute settlement procedures set out in this Title shall be governed by the rules of procedure set out in Annex 48 (ex-ANNEX INST-X [Rules of Procedure]) and conducted in accordance with Annex 49 (ex-ANNEX INST-X [Code of Conduct]).

2. The Partnership Council may amend Annexes 48 and 49. .

Note: the withdrawal agreement also has provisions on the rules of procedure and code of conduct for arbitration, which can likewise be amended by the Joint Committee (Articles 172 and 181 of the agreement).

 

Chapter 5: Specific arrangements for unilateral measures

Article 760 (ex-INST.34B): Special procedures for remedial measures and rebalancing

1. For the purposes of Article 374 and Article 411(2) and (3) (ex-3.12 [Remedial measures] of Chapter 3 [Subsidy control] and Article 9.4(2) and (3) [Rebalancing] of Chapter 9 [Institutional provisions] of Title XI [Level playing field for open and fair competition and sustainable development] of Heading One of Part Two), this Title applies with the modifications set out in this Article.

2. By derogation from Article 740 (ex-INST.15 [Establishment of an arbitration tribunal]) and Annex  48 (ex-INST-X [Rules of procedure for dispute settlement]), if the Parties do not agree on the composition of the arbitration tribunal within two days, the co-chair of the Partnership Council from the complaining Party shall select, no later than one day after the expiry of the two-day time period, an arbitrator by lot from the sub-list of each Party and the chairperson of the arbitration tribunal by lot from the sub-list of chairpersons established pursuant to Article 752 (ex-INST.27 [Lists of arbitrators]). The co-chair of the Partnership Council from the complaining Party may delegate such selection by lot of the arbitrator or chairperson. Each individual shall confirm his or her availability to both Parties within two days from the date on which he or she was informed of his or her appointment. The organisational meeting referred to in Rule 10 of Annex 48 shall take place within 2 days from the establishment of the arbitration tribunal.

3. By derogation from Rule 11 of Annex 48 the complaining Party shall deliver its written submission no later than seven days after the date of establishment of the arbitration tribunal. The respondent Party shall deliver its written submission no later than seven days after the date of delivery of the written submission of the complaining Party. The arbitration tribunal shall adjust any other relevant time periods of the dispute settlement procedure as necessary to ensure the timely delivery of the report.

4. Article 745 (ex-INST.20 [Ruling of the arbitration tribunal]) does not apply and references to the ruling in this Title shall be read as references to the ruling referred to in Article 374(10 or point (c) or Article 411(3) (ex-(a) paragraph 10 of Article 3.12 [Remedial measures] of Chapter 3 [Subsidy control] of Title XI [Level playing field for open and fair competition and sustainable development]; or (b) point (c) of Article 9.4(3) [Rebalancing]).

5. By derogation from Article 748(2) (ex-INST.23(2) [Compliance review]), the arbitration tribunal shall deliver its decision to the Parties within 30 days from the date of delivery of the request.

Note: disputes about subsidies and ‘rebalancing’ (divergences in future labour, environment or subsidies legislation) are subject to special fast-track rules. To summarise what these cross-references mean: there are two days to decide on the composition of the tribunal (rather than ten days). There are quicker rules to serve submissions (seven days rather than 20 days). The usual deadline of 160 days to deliver a ruling is cut to 30 days.  Finally, if compliance with a ruling is disputed before retaliation can be authorised, the tribunal must rule within 30 days (rather than 45 days). There are further special rules on subsidies and rebalancing, discussed in Annex II.

Article 761 (ex-INST.34C): Suspension of obligations for the purposes of Article 374(12), Article 501(5) and Article 506(7) (ex-LPFS.3.12(12), Article FISH.9(5) and Article FISH.14(7))

1. The level of suspension of obligations shall not exceed the level equivalent to the nullification or impairment of benefits under this Agreement or under a supplementing agreement that is directly caused by the remedial measures from the date the remedial measures enter into effect until the date of the delivery of the arbitration ruling.

2. The level of suspension of obligations requested by the complaining Party and the determination of the level of suspension of obligations by the arbitration tribunal shall be based on facts demonstrating that the nullification or impairment arises directly from the application of the remedial measure and affects specific goods, service suppliers, investors or other economic actors and not merely on allegation, conjecture or remote possibility.

3. The level of nullified or impaired benefits requested by the complaining Party or determined by the arbitration tribunal:

(a) shall not include punitive damages, interest or hypothetical losses of profits or business opportunities;

(b) shall be reduced by any prior refunds of duties, indemnification of damages or other forms of compensation already received by the concerned operators or the concerned Party; and

(c) shall not include the contribution to the nullification or impairment by wilful or negligent action or omission of the concerned Party or any person or entity in relation to whom remedies are sought pursuant to the intended suspension of obligations.

Note: this provision sets out detailed rules to calculate how much damage has been suffered for the purposes of retaliation as regards fisheries and subsidies disputes. There are further special rules on subsidies and rebalancing, discussed in Annex II.

Article 762 (ex-INST.34D): Conditions for rebalancing, remedial, compensatory and safeguard measures

Where a Party takes a measure under Articles 374, Article 411, Article 469, Article 501, Article 506 or Article 773 (ex-Article 3.12 [Remedial measures] of Chapter three [Subsidy control] or Article 9.4 [Rebalancing] of Chapter nine [Institutional provisions] of Title XI [Level playing field for open and fair competition and sustainable development] of Heading One [Trade], Article ROAD.11 [Remedial measures] of Heading Three [Road transport], Article FISH.9 [Compensatory measures in case of withdrawal or reduction of access] or Article FISH.14 [Remedial measures and  dispute resolution] of Heading Five of Part Two or Article INST.36 [Safeguards] of Title III of Part Six), that measure shall only be applied in respect of covered provisions within the meaning of Article 735 (ex-INST.10 [Scope]) and shall comply, mutatis mutandis, with the conditions set out in Article 749(3) (ex-INST.24(3) [Temporary remedies]).

Note: this provision clarifies that various forms of retaliation – as regards subsidies, rebalancing, road transport and fisheries (as well as economic safeguards) – can only applied to the ‘covered provisions’ within the scope of the general dispute settlement rules, and are also subject to the various limits on cross-retaliation discussed above. There are further special rules on subsidies and rebalancing, discussed in Annex II.

Annex II: Dispute settlement and LPF

As noted above, for some aspects of the ‘level playing field’, the usual dispute settlement rules are fully excluded (some of the general rules; competition; some of the subsidy rules; taxation).  Some LPF aspects are fully subject to the usual rules: Article 355(2) (ex-1.2(2)) of the LPF rules (precautionary approach), and the rules on state-owned bodies (chapter 4). Other LPF aspects are subject to a modified version of the usual rules, as set out in Article 760 (ex-INST.34B), discussed above. And other LPF aspects are subject to a various modified dispute settlement rules set out in the LPF provisions themselves; this will not be obvious to those who read only the dispute settlement rules. So the following sets out those special LPF rules.

One special set of LPF rules apply to:

-          Article Article 355(3) (ex-1.1(3)) of the LPF rules, which states: “3. Each Party reaffirms its ambition of achieving economy-wide climate neutrality by 2050”;

-          the rules on labour and environmental standards in chapters 6 and 7 (including, but not only, the non-regression rule); and

-          the ‘sustainable development’ rules in chapter 8, which concern not only environmental but also some labour standards.

These special rules consist first of all of a special consultation procedure (Article 408, ex-9.1, of the LPF provisions). Then there is a special panel of experts (Article 409, ex-9.2, of the LPF provisions), in place of arbitrators. However, some of the dispute settlement rules are ‘switched back on’ as regards these experts, namely (para 19):

Except as otherwise provided for in this Article, Article 739(1), Article 740 and Articles 753 to 758, as well as Annexes 48 and 49 (ex-INST.14(1) [Arbitration procedure], Article INST.29 [Arbitration tribunal decisions and rulings], Article INST.30 [Suspension and termination of the arbitration proceedings], Article INST.31 [Mutually agreed solution], Article INST.32 [Time periods], Article INST.34 [Costs], Article INST.15 [Establishment of an arbitration tribunal], or Article INST.28 [Replacement of arbitrators] as well as ANNEX INST [Rules of Procedure for Dispute Settlement] and ANNEX INST-X [Code of Conduct for Arbitrators]), shall apply mutatis mutandis.

This is where disputes on the first and fourth issues listed above (on climate change and sustainable development) end. However, disputes on the labour and environmental chapters (which in practice will cross over with the climate change and sustainable development provisions) are subject to additional dispute settlement rules (Article 410, ex-9.3, of the LPF provisions):

2. For the purposes of such disputes, in addition to the Articles listed in Article 409(19) (ex-9.2(19) [Panel of experts]), Article 749 and 750 (ex-INST.24 [Temporary remedies] and Article INST.25 [Review of any measure taken to comply after the adoption of temporary remedies]) shall apply mutatis mutandis.

Thus, there is the possibility of retaliation where a panel report rules there is a breach of the non-regression clause, or other aspects of the labour and environment chapters. As with the usual cases of retaliation, there is also a review of whether the losing party ultimately has complied with the panel report, in which case the retaliation has to be ended.

The next special set of LPF rules applies to subsidies. The dispute settlement system cannot rule on subsidies in individual cases (except in certain circumstances), or on the recovery of subsidies in individual cases. This limit is not spelled out in Article 735 (ex-INST.10) (unlike the similar limit relating to social security disputes), but is instead set out in Article 375(2) (ex-3.13) of the LPF provisions:

2. An arbitration tribunal shall have no jurisdiction regarding:

(a) an individual subsidy, including whether such a subsidy has respected the principles set out in  Article 366(1) (ex-paragraph 1 of Article 3.4 [Principles]), other than with regard to the conditions set out in Article 367(2), Article 367(3), (4) and (5), Article 367(8) to (11) and Article 367(12) (ex-3.5(2) [Unlimited state guarantees], (3) to (5) [Rescue and restructuring], (8) to (11) [Export subsidies] and (12) [Subsidies contingent upon the use of domestic content]); and

(b) whether the recovery remedy within the meaning of Article 373 (ex-3.11 [Recovery]) has been correctly applied in any individual case.

Another set of special rules is set out in the subsidies LPF clauses (but again, is not reflected in the main dispute settlement rules). If a subsidy has allegedly caused a ‘significant negative effect on trade or investment’ (or there is a ‘serious risk’ that it may do so), the complaining party, following consultations, can retaliate without prior approval by the arbitrators (Article 374, ex-3.12, of the LPF clauses). However, this retaliation can then be challenged on a fast-track basis, although the arbitrators can only examine its compatibility with some of the rules in the subsidies section (para 9, Article 374). This challenge must be brought within five days, and has no suspensive effect; further consultation is not necessary. There are also special rules expressly allowing ‘return retaliation’ if the arbitrators rule that the initial retaliation is in breach of the rules, but it has not been rescinded. ‘Double retaliation’ on the basis of both the subsidies and rebalancing clauses is ruled out.

Yet another set of modified dispute settlement rules applies as regards ‘rebalancing’ (divergences in future labour, environment or subsidies legislation). ‘If material impacts on trade or investment between the Parties are arising as a result of significant divergences’ in these areas, proportionate ‘rebalancing’ retaliation can be imposed (Article 411, ex-9.4, of the LPF rules). The TCA provides that ‘assessment of these impacts shall be based on reliable evidence and not merely on conjecture or remote possibility.’

The intended retaliation must be notified to the other side. Consultations then take place for 14 days, rather than 30 under the usual rules. In the absence of an agreement, the rebalancing retaliation can be imposed; notice that there is no prior requirement that arbitrators find a breach of the TCA, with a reasonable time to comply, before this retaliation can take place. However, within five days the other side can ask arbitrators to rule on whether the retaliation is consistent with the TCA’s rules on rebalancing, summarised above. The arbitrators must rule within 30 days. If they rule against the retaliation, it must be discontinued; if it is not, ‘return retaliation’ is expressly possible. In addition to this, there are some additional special rules set out in Article 760, ex-INST.34B, above, on composition of the tribunal, serving of submissions, and time periods for rulings.

Annex III: Dispute settlement and Fisheries

Dispute settlement and fisheries is subject first of all to the special rules in Article 501, ex-FISH.9, on compensatory measures for withdrawal of access to waters. The basic rule is set out in para 1:

1. Following a notification by a Party (“host Party”) under Article 500(5) (ex-FISH.8(5)[Access to waters]), the other Party (“fishing Party”) may take compensatory measures commensurate to the economic and societal impact of the change in the level and conditions of access to waters. Such impact shall be measured on the basis of reliable evidence and not merely on conjecture and remote possibility. Giving priority to those compensatory measures which will least disturb the functioning of this Agreement, the fishing Party may suspend, in whole or in part, access to its waters and the preferential tariff treatment granted to fishery products under Article 21 (ex-GOODS.5[Prohibition and customs duties]).

Note that the retaliation concerns both access to waters and tariffs on fish, and is subject to a proportionality rule. Para 2 is a rule on timing, and para 3 is a rule on arbitration:

3. After the notification of the compensatory measures in accordance with paragraph 2, the host Party may request the establishment of an arbitration tribunal pursuant to Article 739 (ex-INST.14 [Arbitration procedure] of Title I [Dispute settlement] of Part Six), without having recourse to consultations in accordance with Article 738 (ex-INST.13 [Consultations]). The arbitration tribunal may only review the conformity of the compensatory measures with paragraph 1. The arbitration tribunal shall treat the issue as a case of urgency for the purpose of Article 744 (ex-INST.19 [Urgent proceedings] of Title I [Dispute settlement] of Part Six).

Note that consultations are skipped, the proceedings are urgent (see discussion above), and the arbitrators are limited to assessing whether the sanctions are consistent with the limits in para 1.

Furthermore, if the ‘fishing Party’ (most likely the EU) loses this case, the ‘host Party’ (most likely the UK) can expressly impose ‘return retaliation’ against the retaliation measures taken by the fishing Party, subject to proportionality, if the inconsistency is ‘significant’, subject to the arbitrators agreeing:

5. Following a finding against the fishing Party in the procedure referred to in paragraph 3, the host Party may request the arbitration tribunal, within 30 days from its ruling, to determine a level of suspension of obligations under this Agreement not exceeding the level equivalent to the nullification or impairment caused by the application of the compensatory measures, if it finds that the inconsistency of the compensatory measures with paragraph 1 is significant. The request shall propose a level of suspension in accordance with the principles set out in paragraph 1 and any relevant principles set out in Article 761 (ex-INST.34C [Suspension of obligations for the purposes of LPFS.3.12(12), Article FISH.9(5) and Article FISH.14(7)]). The host Party may apply the level of suspension of obligations under this Agreement in accordance with the level of suspension determined by the arbitration tribunal, no sooner than 15 days following such ruling.

Note the cross-reference back to Article 761, ex-INST.34C, discussed above, which includes a specific rule on calculation of the amount of the permitted return retaliation.

Secondly, dispute settlement on fisheries is subject to a special rule in Article 506, ex-FISH.14, which refers to breaches of the fisheries rules in general. The complaining party may, after giving notice (para 1):

(a) suspend, in whole or in part, access to its waters and the preferential tariff treatment granted to fishery products under Article 21 (ex-GOODS.5[Prohibition of customs duties]); and

(b) if it considers that the suspension referred to in point (a) is not commensurate to the economic and societal impact of the alleged failure, it may suspend, in whole or in part, the preferential tariff treatment of other goods under Article 21; and

(c) if it considers that the suspension referred to in points (a) and (b) is not commensurate to the economic and societal impact of the alleged failure, it may suspend, in whole or in part, obligations under Heading One [Trade] of Part Two [Economic Partnership] with the exception of Title XI [Level Playing Field for open and fair competition and sustainable development]. If Heading One [Trade] is suspended in whole, Heading Three [Road Transport] is also suspended.

There is a special rule if the dispute concerns fisheries as regards the Channel Islands or Isle of Man (para 2).

Any retaliation ‘shall be proportionate to the alleged failure by the respondent Party and the economic and societal impact thereof’ (para 3). A complaining party is obliged to enter into brief consultations (para 4), and to trigger the dispute settlement process within 14 days (para 5); the arbitrators must rule urgently. If the arbitrators rule against the complaining party’s retaliation, it must cease (para 6). Again, return retaliation is expressly allowed (para 7), subject to arbitration, with a cross-reference to the rules on calculation of damage in Article 761, ex-INST.34C.

Given the relative size of the fisheries industry, it is presumably unlikely (to say the least) that arbitrators would find the suspension of all of the trade and road transport provisions of the TCA was a proportionate reaction to the breach of the fisheries provisions.  

Barnard & Peers: chapter 27

Photo credit: Adrian Jack Bunsby, via Wikimedia commons

Analysis 3 of the Brexit deal: Human Rights and EU/UK Trade and Cooperation Agreement

Professor Steve Peers, University of Essex

Introduction

While the UK has left the European Union, its participation in the European Convention on Human Rights (ECHR) lives on. Yet although ECHR participation is separate from EU membership, there are links between human rights and EU law. Although those particular links have now ended for the UK, there is now a different set of links between human rights and the newly applicable Trade and Cooperation Agreement (TCA) between the EU and the UK.

This blog post examines those links, looking in turn at: (a) human rights conditionality in the TCA as a whole; (b) human rights conditionality in the criminal law part of the TCA; (c) the protection of social rights in the TCA; (d) data protection issues in the TCA; (e) the role of the courts on the EU side. There’s also a possibility for disapplying the services rules to a particular company covered by sanctions, including sanctions on human rights grounds (Article SERVIN.1.3), but I don’t look further at that in this blog post (although note that unlike some other issues discussed in this blog post, the normal TCA dispute settlement rules would apply to any disputes about such sanctions). (Update April 28, 2021: this blog post has been updated to refer to the final numbering of TCA Articles. It has retained the old numbering too, for the convenience of anyone used to using it).

This blog post is the third in the series of analyses of the TCA – following on from my overview of the TCA, and Professor Tamara Hervey’s analysis of the social security provisions. (Update: later blog posts cover dispute settlement and environment and climate change).

As a reminder, the TCA is a separate treaty from the withdrawal agreement, which continues to apply between the UK and the EU. The rules on termination or suspension of the TCA are quite different from those applicable to the withdrawal agreement (which I discussed here) – and not only as regards human rights issues.

Summary of this blog post

The general rules on human rights conditionality of the whole TCA allow it to be terminated or suspended (perhaps in part) on human rights grounds, but this is not automatic and is subject to a fairly high threshold.  For criminal law, there is a special form of fast track termination (if the UK or a Member State denounces the ECHR or some of its Protocols, including on the death penalty) or suspension. Again, this is not automatic. For social/labour rights, there are general rules which may lead to a panel report, but not retaliation, as well as a non-regression obligation, which can result in retaliation, most likely in the area of trade. For data protection law, there’s a short transition period where in principle the UK is covered by data protection law, following which much will depend on whether it has obtained a valid adequacy decision from the EU. Finally, the role of the courts in human rights disputes may be important too – most obviously as regards data protection adequacy decisions, where prior case law sets out the possibility to argue that a non-EU country does not meet the standards which it needs to meet to get one, but potentially in some other EU/UK human rights disputes too.

 

Human rights conditionality in the TCA as a whole

The starting point for human rights conditionality of the TCA as a whole is the ‘common provisions’ of the TCA (in Title II of Part Six). This begins with a dedicated Article on human rights:

Article 763 (previously COMPROV.4): Democracy, rule of law and human rights

1. The Parties shall continue to uphold the shared values and principles of democracy, the rule of law, and respect for human rights, which underpin their domestic and international policies. In that regard, the Parties reaffirm their respect for the Universal Declaration of Human Rights and the international human rights treaties to which they are parties.

The ECHR is not mentioned specifically, although it is, of course, one of the international human rights treaties which the UK is party to. There are subsequent Articles on climate change, weapons of mass destruction (WMDs), serious crime, counter-terrorism, data protection, and global cooperation. However, only the provisions on human rights, climate change and WMDs are then described by Article 771 (previously COMPROV.12) as constituting ‘essential elements of the partnership established by this Agreement and any supplementing agreement’.

The consequence of defining an issue as an ‘essential element’ of the TCA is that it is then subject to a special procedure in Title III of Part Six, potentially leading to fast-track termination or suspension of the entire agreement, partly or wholly:

Article 772 (previously INST.35): Fulfilment of obligations described as essential elements

1. If either Party considers that there has been a serious and substantial failure by the other Party to fulfil any of the obligations that are described as essential elements in Article 771 (previously COMPROV.12 [Essential elements]), it may decide to terminate or suspend the operation of this Agreement or any supplementing agreement in whole or in part.

2. Before doing so, the Party invoking the application of this Article shall request that the Partnership Council meet immediately with a view to seeking a timely and mutually agreeable solution. If no mutually agreeable solution is found within 30 days from the date of the request to the Partnership Council, the Party may take the measures referred to in paragraph 1.

3. The measures referred to in paragraph 1 shall be in full respect of international law and shall be proportionate. Priority shall be given to the measures which least disturb the functioning of this Agreement and of any supplementing agreements.

4. The Parties consider that, for a situation to constitute a serious and substantial failure to fulfil any of the obligations described as essential elements in Article 771 (previously COMPROV.12 [Essential Elements]), its gravity and nature would have to be of an exceptional sort that threatens peace and security or that has international repercussions. For greater certainty, an act or omission which materially defeats the object and purpose of the Paris Agreement shall always be considered as a serious and substantial failure for the purposes of this Article.

Note, however, that: a) it must be a ‘serious and substantial failure’ to fulfil obligations described as an ‘essential element’, further defined as a failure whose ‘gravity and nature would have to be of an exceptional sort that threatens peace and security or that has international repercussions’; b) denouncing the ECHR, or any other human rights treaty, is not explicitly mentioned in this context; c) suspension or termination is not automatic (a party ‘may decide’); d) there are procedural requirements, entailing at least a 30-day delay in any measures being taken while discussions are held; and e) there is an obligation of proportionality – which may mean that the complaining party stops short of terminating the entire agreement.

Moreover, either party may terminate the entire treaty anyway with twelve months’ notice, without having to give any grounds or go through any discussion process (Article 779, previously FINPROV.8).  So the ‘essential elements’ clause should be seen in that context – it’s a fast-track to termination (or suspension), but then termination would be possible anyway after a relatively short period if the threshold for fast track termination is not met. It should also be noted that similar clauses exist in other EU treaties with non-EU countries – and the EU is notably reluctant to trigger them. 

A final point: the provisions of Title II of Part Six are excluded from the dispute settlement process (see Article 735(2)(h), previously INST.10(2)(h)). This means that the substantive definitions of ‘essential elements’ of the TCA cannot be subject to dispute settlement. However, there is no exclusion from dispute settlement for Title III of Part Six – ie the provision on the process of deciding on suspension or termination of the treaty. 

 

Human rights conditionality in the criminal law part of the TCA

Part Three of the TCA, which comprises the rules on law enforcement cooperation, contains its own variation on an ‘essential elements’ clause (Article 524, previously LAW.GEN.3):

1. The cooperation provided for in this Part is based on the Parties’ and Member States’ longstanding respect for democracy, the rule of law and the protection of fundamental rights and freedoms of individuals, including as set out in the Universal Declaration of Human Rights and in the European Convention on Human Rights, and on the importance of giving effect to the rights and freedoms in that Convention domestically.

2. Nothing in this Part modifies the obligation to respect fundamental rights and legal principles as reflected, in particular, in the European Convention on Human Rights and, in the case of the Union and its Member States, in the Charter of Fundamental Rights of the European Union.

This Article tells us that Part Three of the TCA is ‘based on…respect for’ human rights, including the ECHR, as well as the ‘importance’ of giving effect to it domestically. Unlike the general provisions in the TCA, here we have an explicit reference to the ECHR.

However, these provisions, by themselves, do nothing. To assess the practical importance of human rights protection to the criminal law Part of the treaty we have to look at Part Three’s own termination clause (Article 692, previously LAW.OTHER.136):

1. Without prejudice to Article 779 (previously FINPROV.8 [Termination]), each Party may at any moment terminate this Part by written notification through diplomatic channels. In that event, this Part shall cease to be in force on the first day of the ninth month following the date of notification. 

2. However, if this Part is terminated on account of the United Kingdom or a Member State having denounced the European Convention on Human Rights or Protocols 1, 6 or 13 thereto, this Part shall cease to be in force as of the date that such denunciation becomes effective or, if the notification of its termination is made after that date, on the fifteenth day following such notification.

3. If either Party gives notice of termination under this Article, the Specialised Committee on Law Enforcement and Judicial Cooperation shall meet to decide what measures are needed to ensure that any cooperation initiated under this Part is concluded in an appropriate manner. In any event, with regard to all personal data obtained through cooperation under this Part before it ceases to be in force, the Parties shall ensure that the level of protection under which the personal data were transferred is maintained after the termination takes effect.

As we can see, either side has a general power to terminate Part Three specifically (leaving in place the rest of the treaty) with nine months’ notice. This differs from the twelve months’ notice as regards the general power to terminate the entire treaty. As with the termination clause relating to the entire TCA, the power to terminate Part Three is not limited to any specific grounds. However, unlike the general TCA termination clause, the Part Three termination clause includes a requirement (in para 3) to discuss the process of wrapping up proceedings which are underway, as well as a safeguard for the protection of personal data which was already transferred. (Update, 28 April 2021: the EU institutions will adopt a statement declaring their intention to use this clause).

Furthermore, Part Three has its own specialist version of the whole TCA’s ‘essential elements’ clause, which similarly provides for a form of fast-track termination (para 2).  Here, the termination of Part Three ends the moment that denunciation of the ECHR or one of the three protocols referred to by the UK or an EU Member State becomes effective – or, if denunciation has already happened, fifteen days after the notice to terminate Part Three. (Note that two of these three protocols concern abolition of the death penalty).

As compared to the whole TCA’s ‘essential elements’ clause, the Part Three fast-track termination clause: that: a) is not subject to the ‘serious and substantial failure’ threshold (or any other threshold above and beyond denunciation of the ECHR or its listed protocols); b) termination is not automatic (a party ‘may’: para 1); c) there are no procedural requirements to discuss the issue, just the requirement to discuss wrapping up proceedings already underway (which, in this context, would likely be affected significantly by the denunciation of the ECHR or its protocols); d) there is no obligation of proportionality; and e) there is no reference in this context to amending or scrapping domestic law giving effect to the ECHR – although of course the general Part Three termination clause could still be invoked in that event.

This is not the end of the matter, though, because the criminal law part also includes its own clause on suspension, as distinct from termination. (You will recall that the ‘essential elements’ clause applying to the entire TCA, discussed above, could be used for termination or suspension, in whole or in part). This is Article 693 (previously LAW.OTHER.137), which provides as follows:

1. In the event of serious and systemic deficiencies within one Party as regards the protection of fundamental rights or the principle of the rule of law, the other Party may suspend this Part or Titles thereof, by written notification through diplomatic channels. Such notification shall specify the serious and systemic deficiencies on which the suspension is based.

5. The Titles concerned by the suspension shall provisionally cease to apply on the first day of the third month following the date of the notification referred to in paragraph 1 or 2, unless, no later than two weeks before the expiry of that period, as extended, as the case may be, in accordance with point (d) of paragraph 7, the Party which notified the suspension gives written notification to the other Party, through diplomatic channels, of its withdrawal of the first notification or of a reduction in scope of the suspension. In the latter case, only the Titles referred to in the second notification shall provisionally cease to apply.

6. If one Party notifies the suspension of one or several Titles of this Part pursuant to paragraph 1 or 2, the other Party may suspend all of the remaining Titles, by written notification through diplomatic channels, with three months’ notice.

7. Upon the notification of a suspension pursuant to paragraph 1 or 2, the Partnership Council shall immediately be seized of the matter. The Partnership Council shall explore possible ways of allowing the Party that notified the suspension to postpone its entry into effect, to reduce its scope or to withdraw it. To that end, upon a recommendation of the Specialised Committee on Law Enforcement and Judicial Cooperation, the Partnership Council may: (a) agree on joint interpretations of provisions of this Part; (b) recommend any appropriate action to the Parties; (c) adopt appropriate adaptations to this Part which are necessary to address the reasons underlying the suspension, with a maximum validity of 12 months; and (d) extend the period referred to in paragraph 5 by up to three months.

8. If either Party gives notification of suspension under this Article, the Specialised Committee on Law Enforcement and Judicial Cooperation shall meet to decide what measures are needed to ensure that any cooperation initiated under this Part and affected by the notification is concluded in an appropriate manner. In any event, with regard to all personal data obtained through cooperation under this Part before the Titles concerned by the suspension provisionally cease to apply, the Parties shall ensure that the level of protection under which the personal data were transferred is maintained after the suspension takes effect.

9. The suspended Titles shall be reinstated on the first day of the month following the day on which the Party having notified the suspension pursuant to paragraph 1 or 2 has given written notification to the other Party, through diplomatic channels, of its intention to reinstate the suspended Titles. The Party having notified the suspension pursuant to paragraph 1 or 2 shall do so immediately after the serious and systemic deficiencies on the part of the other Party on which the suspension was based have ceased to exist.

10. Upon the notification of the intention to reinstate the suspended Titles in accordance with paragraph 9, the remaining Titles suspended pursuant to paragraph 6 shall be reinstated at the same time as the Titles suspended pursuant to paragraph 1 or 2.

Paragraphs 2 to 4 concern data protection, and so are considered separately in a later part of this blog post. Note that: a) there is a threshold of ‘serious and systemic deficiencies’ – which is similar, but not identical, to the general TCA ‘essential elements’ clause; b) suspension is not automatic (a party ‘may’: para 1); c) there are procedural requirements to discuss the issue, which include a power to amend Part Three temporarily or delay the suspension process; d) there is again a requirement to discuss wrapping up proceedings already underway (which, in this context, would again likely be affected significantly by the concerns about human rights); e) there is no obligation of proportionality; f) there is again no explicit reference to amending or scrapping domestic law giving effect to the ECHR – although it is obviously possible that such a development could in practice trigger concerns about ‘serious and systemic deficiencies’; g) suspension takes about three months to take effect, so is slower than the general TCA ‘essential elements’ clause; h) if one party suspends some of Part Three, the other party can suspend the rest of it in return; and i) there is provision to end the suspension if the ‘serious and systemic deficiencies’ have ‘ceased to exist’.

As with the general ‘essential elements’ clause, Part Three has somewhat contradictory rules on dispute settlement, which apply in place of the main dispute settlement rules (or any other dispute settlement process: Article 697, previously LAW.DS.3). However, these special dispute settlement rules don’t apply to the suspension or termination clauses (Article 696, previously LAW.DS.2). On the other hand, the substantive human rights grounds in Part Three (Article 524, previously LAW.GEN.3) can be subject to dispute settlement. So while dispute settlement for the general ‘essential elements’ clause is confusing because the process can be subject to dispute settlement while the substantive clause cannot, the Part Three dispute settlement process is confusing for precisely the opposite reason: the substantive clause can be subject to dispute settlement, while the procedural clause cannot.

In any event, the application of the Part Three dispute settlement rules to the substantive human rights clauses gets us to essentially the same place in the end: in the event that the purely political Part Three dispute settlement process does not lead to a conclusion, one party can suspend some of Part Three in more or less the same way as it can under Article 693 (previously LAW.OTHER.137), discussed above (see Article 700, previously LAW.DS.6).

Finally, it should be noted that Part Three contains a number of specific provisions on human rights relating to specific forms of law enforcement cooperation. For fast-track extradition, Article  604(c) (previously LAW.SURR.84(c)) provides that ‘if there are substantial grounds for believing that there is a real risk to the protection of the fundamental rights of the requested person, the executing judicial authority may require, as appropriate, additional guarantees as to the treatment of the requested person after the person’s surrender before it decides whether to execute the arrest warrant’. Note that this is not explicitly a ground to refuse extradition as such, but rather a possibility to request additional guarantees.

For freezing and confiscation of assets, Article 671 (previously LAW.CONFISC.16) provides that ‘[w]here there are substantial grounds for believing that the execution of a freezing or confiscation order would entail a real risk for the protection of fundamental rights, the requested State shall, before it decides on the execution of the freezing or confiscation order, consult the requesting State and may require any necessary information to be provided.’ This is a similar approach to the extradition clause.

Finally, as regards Europol, Article 570 (previously LAW.EUROPOL.52(3)), concerning ‘restrictions on access to and further use of transferred personal data’, provides (among other things) that ‘Each Party shall ensure, as far as possible, that’ information transferred under the Title of the treaty relating to Europol ‘has not been obtained in violation of human rights. Nor shall such information be transferred if, to the extent reasonably foreseeable, it could be used to request, hand down or execute a death penalty or any form of cruel or inhuman treatment.’

None of these special human rights exceptions are excluded from the rules on dispute settlement regarding Part Three of the TCA.

 

Protection of social rights in the TCA

The protection of social rights has two facets. First of all, the ‘non-regression’ clause relating to existing employment law (Article 386, previously 6.1 of the ‘level playing field’ rules), which applies to ‘labour and social levels of protection’, defined as including ‘(a) fundamental rights at work’ (along with ‘(b) occupational health and safety standards; (c) fair working conditions and employment standards; (d) information and consultation rights at company level; or (e) restructuring of undertakings’). A footnote confirms that this does not apply to social security or pensions, and Article 386(2) clarifies that, on the EU side, ‘“labour and social levels of protection” means labour and social levels of protection that are applicable to and in, and are common to, all Member States’.

Article 387(2) (previously 6.2) sets out the non-regression rule which applies:

A Party shall not weaken or reduce, in a manner affecting trade or investment between the Parties, its labour and social levels of protection below the levels in place at the end of the transition period, including by failing to effectively enforce its law and standards.

To enforce this non-regression rule, there is a special rule on dispute settlement (Article 389, previously 6.4): in place of the general dispute settlement rules, Articles 408-410, previously 9.1 to 9.3, of the level playing field provisions apply. (More about them in a moment).

The second set of relevant rules is found in chapter 8 of the level playing field provisions, on ‘Other instruments for trade and sustainable development’. The term ‘sustainable development’ here does not only refer to environmental law, though. The point of this chapter, according to Article 397(2) (previously 8.1(2)) of the LPF provisions, is to ‘enhance the integration of sustainable development, notably its labour and environmental dimensions, in the Parties' trade and investment relationship and in this respect to complement the commitments of the Parties under Chapter 6 [Labour and social standards] and Chapter 7 [Environment and climate].’ To that end, the parties ‘recall’, among other things, ‘the International Labour Organization (ILO) Declaration on Social Justice for a Fair Globalization, adopted at Geneva on 10 June 2008 by the International Labour Conference at its 97th Session (the “2008 ILO Declaration on Social Justice for a Fair Globalization”)’ (Article 397(1), previously 8.1(1)).

The key provision on labour standards in this chapter (Article 399, previously 8.3) refers expressly to social rights:

1. The Parties affirm their commitment to promoting the development of international trade in a way that is conducive to decent work for all, as expressed in the 2008 ILO Declaration on Social Justice for a Fair Globalization.

2. In accordance with the ILO Constitution and the ILO Declaration on Fundamental Principles and Rights at Work and its Follow-up, adopted at Geneva on 18 June 1998 by the International Labour Conference at its 86th Session, each Party commits to respecting, promoting and effectively implementing the internationally recognised core labour standards, as defined in the fundamental ILO Conventions, which are: (a) freedom of association and the effective recognition of the right to collective bargaining; (b) the elimination of all forms of forced or compulsory labour; (c) the effective abolition of child labour; and (d) the elimination of discrimination in respect of employment and occupation.

3. Each Party shall make continued and sustained efforts to ratify the fundamental ILO Conventions if they have not yet done so.

4. The Parties shall exchange information, regularly and as appropriate, on the respective situations and progress of the Member States and of the United Kingdom with regard to the ratification of ILO Conventions or protocols classified as up-to-date by the ILO and of other relevant international instruments.

5. Each Party commits to implementing all the ILO Conventions that the United Kingdom and the Member States of the Union have respectively ratified and the different provisions of the European Social Charter that, as members of the Council of Europe, the Member States of the Union and the United Kingdom have respectively accepted.

6. Each Party shall continue to promote, through its laws and practices, the ILO Decent Work Agenda as set out in the 2008 ILO Declaration on Social Justice for a Fair Globalization (the “ILO Decent Work Agenda”) and in accordance with relevant ILO Conventions, and other international commitments, in particular with regard to: (a) decent working conditions for all, with regard to, inter alia, wages and earnings, working hours, maternity leave and other conditions of work; (b) health and safety at work, including the prevention of occupational injury or illness and compensation in cases of such injury or illness; and (c) non-discrimination in respect of working conditions, including for migrant workers.

7. Each Party shall protect and promote social dialogue on labour matters among workers and employers, and their respective organisations, and with relevant government authorities.

8. The Parties shall work together on trade-related aspects of labour policies and measures, including in multilateral fora, such as the ILO, as appropriate. Such cooperation may cover inter alia: (a) trade-related aspects of implementation of fundamental, priority and other up-to-date ILO Conventions; (b) trade-related aspects of the ILO Decent Work Agenda, including on the interlinkages between trade and full and productive employment, labour market adjustment, core labour standards, decent work in global supply chains, social protection and social inclusion, social dialogue and gender equality; (c) the impact of labour law and standards on trade and investment, or the impact of trade and investment law on labour; (d) dialogue and information-sharing on the labour provisions in the context of their respective trade agreements, and the implementation thereof; and (e) any other form of cooperation deemed appropriate.

9. The Parties shall consider any views provided by representatives of workers, employers, and civil society organisations when identifying areas of cooperation and when carrying out cooperative activities.

Note that a footnote to para 5 clarifies the reference to the ILO Conventions and the Council of Europe Social Charter:

Each Party maintains its right to determine its priorities, policies and the allocation of resources in the effective implementation of the ILO Conventions and the relevant provisions of the European Social Charter in a manner consistent with its international commitments, including those under this Title. The Council of Europe, established in 1949, adopted the European Social Charter in 1961, which was revised in 1996. All Member States have ratified the European Social Charter in its original or revised version. For the United Kingdom, the reference to the European Social Charter in paragraph 5 refers to the original 1961 version.

But again, how does all this (including the extensive environmental provisions that accompany the labour commitments) get enforced? Again, the main dispute settlement rules don’t apply: instead the parties are subject to Articles 408 and 409, previously 9.1 and 9.2, of the level playing field provisions, in place of the general dispute settlement rules (Article 407, previously 8.11). But notice that unlike the non-regression rules, Article 410, previously 9.3, does not apply.  Let’s now see what that means in practice.

Article 408 (previously 9.1) states that the parties must enter into consultation, which may involve information from ILO bodies. Article 409 (previously 9.2) then provides for a panel of experts to be set up, if the consultations are not successful. These experts should also seek guidance from ILO bodies (para 6). The panel is to deliver a report, but para 9 of Article 409 is at pains to point out that this process is toothless:

For greater certainty, the Parties share the understanding that if the Panel makes recommendations in its report, the responding Party does not need to follow these recommendations in ensuring conformity with the Agreement.

Article 409(19) moreover applies some parts of the dispute settlement rules to these panels, but crucially not the parts dealing with remedies. More precisely, it provides that:

Except as otherwise provided for in this Article, Article 739(1) (ex INST.14(1) [Arbitration procedure]), Article 740 (ex INST.29 [Arbitration tribunal decisions and rulings]), and Articles 753 to 758 (INST.30 [Suspension and termination of the arbitration proceedings], Article INST.31 [Mutually agreed solution], Article INST.32 [Time periods], Article INST.34 [Costs], Article INST.15 [Establishment of an arbitration tribunal], or Article INST.28 [Replacement of arbitrators]) as well as Annexes 48 and 49 (previously ANNEX INST [Rules of Procedure for Dispute Settlement] and ANNEX INST-X [Code of Conduct for Arbitrators]), shall apply mutatis mutandis.

Having said that, it is possible that the panel process could have a political impact, as it might be useful for those objecting that the UK (or EU) was not upholding social rights to have a panel report in their favour that they could wave around.

More importantly, there is a key distinction between arguments over the sustainable development provisions – where the dispute stops here – and disputes over non-regression, where, as noted above, Article 410 (ex-9.3) also applies. Article 410 applies the same rules on panels of experts set out in Article 409, but then adds that:

2. For the purposes of such disputes, in addition to the Articles listed in Article 409(19) (ex-9.2(19) [Panel of experts]), Articles 749 and 750 (ex-INST.24 [Temporary remedies] and Article INST.25 [Review of any measure taken to comply after the adoption of temporary remedies]) shall apply mutatis mutandis.

3. The Parties recognise that, where the responding Party chooses not to take any action to conform with the report of the panel of experts report and with this Agreement, any remedies authorised under Article 749 (ex-INST.24 [Temporary remedies]) continue to be available to the complaining Party.

What does this mean in practice? Article 749 states that: a) the losing party must offer compensation if the winning party requests it (para 1); b) the winning party can suspend parts of the TCA if either it decides not to request compensation, or if discussions about compensation do not result in agreement (para 2); c) there are some limits on which provisions can be suspended (para 3); d) suspension must not exceed ‘the level equivalent to the nullification or impairment caused by the violation’ (para 5); e) suspension can relate to any part of the trade heading of the treaty (para 6); f) suspension can also relate to any other part of the treaty subject to the general dispute settlement rules, ‘if the complaining party considers that it is not practicable or effective to suspend obligations’ relating to trade, ‘and that the circumstances are serious enough’ (para 8, presumably still subject to the limits in para 3); g) suspension takes effect 10 days after notifying it, unless the losing party argues that it is disproportionate or in breach of the rules against cross-retaliation (para 10); h) this request delays the suspension until the arbitrators rule on this issue, which must be within 30 days (para 11); and i) suspension is ‘temporary’, lasting until the parties negotiate a solution, agree that the losing party has complied with its obligations, or the losing party has amended its law in order to comply with them (para 13).

What if the losing party claims that it has complied with the ruling, but the winning party does not agree? This is covered by the reference to Article 750, which provides that the losing party must notify any compliance measure to the winning party, which must end its retaliation within 30 days (para 1). If the parties do not agree that the losing party is now complying with the ruling, the winning party may request the arbitration panel to rule on this; the panel must rule within 46 days, and the retaliation must end if it agrees that the losing party is now in compliance (para 2). It is also possible that the losing party is partly in compliance, in which case the level of retaliation must be reduced. 

I’ve left out a discussion of what happens in the event of divergence following future developments in labour law (which the TCA refers to as ‘rebalancing’, because there’s no express mention of human rights in that context. Note, however, that this process is also subject to possible suspension of obligations, subject to special rules on arbitration and a different (higher) threshold to show that this divergence affects trade or investment (‘material impacts on trade or investment…arising as a result of significant divergences’).

 

Data protection issues in the TCA

The immediate starting point of the TCA on data protection is the further transition period (which calls itself a ‘specified period’) during which the UK is still covered by EU data protection law (Article  782, previously FINPROV.10A: note this is excluded from the dispute settlement rules). This period lasts for four months, but is extended to six months unless one of the parties objects (para 4), but can end earlier if the EU Commission adopts ‘adequacy decisions’ simplifying transfer of personal data to the UK on the basis of the GDPR or the law enforcement directive. It is subject to the UK retaining EU data protection law in force during this period (para 1), and not making certain changes to its law (listed in para 3) without the EU’s agreement.  If the UK breaches those terms, the transition period ends (para 5). The process of the EU agreeing to amendments is further spelled out.  

UK are adopted by the European Commission under Article 36(3) of Directive (EU) 2016/680 and under Article 45(3) of Regulation (EU) 2016/679, or (b) on the date four months after

After that point, the data protection rules in the criminal law part of the TCA become more relevant. Article 525 (ex-LAW.GEN.4), which is similar to the general provision on human rights and criminal law cooperation discussed above, provides that criminal law cooperation ‘is based on the Parties’ long-standing commitment to ensuring a high level of protection of personal data. A number of basic data protection principles are then spelled out, but the mechanism to enforce this is the suspension clause for the criminal law part, discussed above. It states that in the event that a data protection adequacy decision ceases to apply, or ‘[i]n the event of serious and systemic deficiencies within one Party as regards the protection of personal data’, it is possible for some or all of the criminal law part of the TCA to be suspended (Article 693(2), ex-LAW.OTHER.137(2)). The rules on suspension of the criminal law part on human rights grounds, discussed above, apply. (Update, April 28, 2021: the EU institutions will adopt a declaration addressing this issue).

Note that there are special provisions on suspension of exchanges of passenger name records (Article LAW.PNR 38) but in this case, suspension can be for any grounds, not only human rights or data protection grounds. Article LAW.PRUM.19 provides for a special suspension rule regarding DNA, vehicle and fingerprint data exchanges only in cases of divergence of legislation. The criminal law dispute settlement rules don’t apply to these suspensions.

Finally, the TCA does not appear to include any express provision dealing with what happens if the Commission does not adopt an adequacy decision within the data protection transition period. (Update, 28 April 2021: the Commission has announced its intention to adopt a draft adequacy decision).

 

Role of the courts on the EU side

The EU courts (and Member States’ national courts) have long had significant roles as regards the protection of human rights within the EU legal order. What role would they have under the TCA?

The first thing to point out is that they would not have any jurisdiction directly as far as the UK was concerned. Any disputes about the application of the TCA within the UK are up to courts in the UK to decide (with the exception of disputes about UK participation in EU funding programmes, such as the research funding legislation). However, EU or Member States’ court rulings could have some indirect impact on the UK – for instance, a ruling that some or all persons subject to UK extradition requests cannot be sent to the UK obviously has an impact upon the UK. (Likewise, UK court rulings applying the treaty could have an equivalent indirect impact upon the EU or individual Member States).

The second thing to point out is that, as observed at the beginning of this blog, human rights issues arise as regards the TCA in a different way than they arise within the scope of EU law as between EU Member States.  In particular, Article 7 TEU – which provides for an essentially political process of determining whether a Member State has seriously and persistently breached EU law (or runs a risk of doing so) does not apply. While the general rules of TCA human rights conditionality are very broadly comparable to Article 7 TEU, they are far from identical. (On the details of Article 7, see further here; on its relationship with ‘ordinary’ EU law, see discussion here).

What if the EU decided to terminate or suspend the TCA on general human rights grounds (the ‘essential elements’ clause)? The starting point is Article 218(9) TFEU, which provides for the suspension of treaties with non-EU countries by the Council, on the basis of a proposal from the Commission.  The European Parliament has no role, and the Council implicitly votes by qualified majority, as it is the default rule for Council voting. (The Council must be unanimous when signing or concluding association agreements, according to Article 218(8); but the reference to the ‘procedure’ there does not apply to para 9). There is, however, no express rule for terminating a treaty.

As for the specific human rights provisions of the TCA, the Council decision on signing the TCA provides that the Commission can take decisions to retaliate as part of the dispute settlement process – which would be relevant to some social rights disputes. The proposal to conclude the TCA provides for the same rule. There is no specific rule on terminating or suspending the criminal law part treaty on human rights grounds, so presumably Article 218(9) TFEU applies, at least as regards suspension. For data protection, EU Commission adequacy decisions can be reviewed via the national courts asking the CJEU questions about their validity – see most recently Schrems II, discussed here.

This well-trodden route to challenging a data protection adequacy decision might well be used again if the Commission adopted an adequacy decision for the UK. But it is an open question how other decisions to suspend or terminate the TCA (or parts of it) on human rights grounds might be challenged in practice. While the CJEU judgment in Racke said that national courts can ask the CJEU if it was valid for the EU to decide to terminate a treaty in light of international law, that  judgment was based on the treaty in question conferring rights on individuals – but this is ruled out for the TCA, except for social security and (on the EU side) the criminal law provisions.

Challenging an implied decision not to trigger suspension or termination might be even more difficult – although this may depend on whether EU trade remedies law is amended to allow unions and environmental NGOs to request the Commission to begin a dispute settlement process, which might mean that its refusal to do so could be challenged in the EU courts. Issues might also arise if the EU decides to end a suspension or retaliation.

It is also possible that national courts might start to come to their own conclusions about the human rights record of the UK (or conversely, courts in the UK might start to do so as regards the EU, or at least some of its Member States). To some extent, this possibility is accommodated by the possibility of asking for human rights safeguards in extradition proceedings, noted above. More broadly the question might arise if the CJEU’s unwillingness to suspend application of the European Arrest Warrant system on human rights grounds pending an Article 7 decision against a Member State (see the 2018 judgment discussed here, as confirmed in December 2020) applies by analogy to the TCA – given that, as noted already, Article 7 does not apply. Of course, the constraints of Article 7 no longer apply to the UK either.

 

Barnard & Peers: chapter 27

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