Dispute Short Town Too The Ecj Inwards The Draft Withdrawal Agreement

Professor Steve Peers, University of Essex*

One of the most contentious issues inwards EU/UK relations after Brexit is going to locomote the extent to which at that topographic point is soundless precisely about residue connection betwixt the UK as well as the EU’s Court of Justice. At first, that number volition arise inwards the withdrawal understanding which is beingness negotiated, a draft of which was tabled yesteryear the European Union Commission in conclusion week. It volition eventually arise to precisely about extent also inwards the time to come human relationship betwixt the 2 sides, but let’s focus on the withdrawal understanding for now.

In this weblog post, I analyse the master copy issues, annotate component of the proposed withdrawal agreement, as well as suggest a number of amendments to the text. Note that precisely about issues raised are especially relevant to the acquired rights of EU27 as well as UK citizens – which volition locomote the bailiwick of my side yesteryear side annotation as well as analysis. (I lead hold previously annotated as well as analysed the proposed text on the transition (implementation) period, as well as the Irish border).

Structure of the withdrawal agreement

The master copy provisions on dispute short town appear inwards the “Final Provisions” inwards Part Six of the draft withdrawal understanding (Articles 151-168).

Within Part Six, at that topographic point are iv titles:

-          Title I on “Consistent Interpretation as well as Application” (Articles 151-156), which covers precisely about aspects of ECJ jurisdiction, plus also a national ascendence inwards the UK to defend EU27 citizens’ rights, as well as other provisions;

-          Title II on “Institutional Provisions” (Articles 157-159), which sets upwardly the Joint Committee to monitor as well as apply the Agreement;

-          Title III on “Dispute Settlement” (Articles 160-165), which contains provisions on the ECJ as good as unilateral sanctions; as well as

-          Title IV on “Final Provisions” (Articles 166-168).

However, for a total understanding of the issues, it’s also necessary to yell precisely about aspects of the other Parts of the draft agreement, which comprises: the “Common Provisions” inwards Part One (Articles 1-7); Part Two on citizens’ rights (Articles 8-35); the “separation provisions” (Part Three: Articles 36-120); the transition (or implementation) current (Part Four: Articles 121-126); the fiscal short town (Part Five: Articles 127-150); the “Final Provisions” inwards Part Six (Articles 151-168); as well as the Protocols on Republic of Ireland as well as UK bases on Republic of Cyprus (the latter Protocol is blank so far).

Broader context

As a Member State, the UK is covered yesteryear the ordinary jurisdiction of the ECJ, which comprises, amongst other things, references from national courts on the interpretation or validity of European Union police (Article 267 TFEU), direct challenges to acts of the European Union institutions or other bodies (Article 263 TFEU), as well as infringement actions against Member U.S. which lead hold allegedly violated European Union law, commonly brought yesteryear the European Union Commission (Articles 258-260 TFEU).

However, it is odd for non-EU states to locomote bailiwick to the ECJ’s jurisdiction. It only has a role when international treaties which the European Union has signed brand reference to European Union law. This is hard to avoid from the EU’s perspective because according to the ECJ’s representative law, it breaches European Union police for non-EU bodies to give an interpretation of European Union police which binds the European Union (see Opinion 1/92 as well as Opinion 1/00).

Dispute settlement, ECJ as well as the withdrawal agreement: an overview

The outset dominion inwards the draft withdrawal understanding relevant to the ECJ appears inwards Article 4(4), which requires references to European Union police inwards the understanding to locomote interpreted inwards accordance with ECJ representative police prior to the destination of the transition/implementation period. Article 4(5) requires subsequent ECJ representative police to locomote taken into account. European Union police is defined broadly inwards Article 2, as well as Article five states that it includes amendments to European Union police going upwardly to the destination of the transition/implementation period. Article 4(1) to (3) require that the withdrawal understanding has the same legal effect as well as rules of interpretation as when the UK was a Member State, as well as that it locomote incorporated into primary legislation inwards the UK. In particular EU27 citizens must locomote able to invoke direct inwards UK courts the rules on their acquired rights set out inwards Part Two of the Agreement.

During the transition/implementation period, the ECJ has its ordinary jurisdiction as regards the UK (Article 126). When that current ends (the Commission proposes the destination of 2020: see Article 121), Part Three of the Withdrawal Agreement, on separation provisions, contains a number of special rules on the ECJ’s jurisdiction. Articles 82-87 specify that the Court volition retain jurisdiction for whatever cases pending at the destination of the transition/implementation period, as well as indeed for many cases which relate to events before that appointment which mightiness locomote sent to the Court afterward (Article 83). There’s a special dominion if the UK does non comply with an administrative conclusion of an European Union trunk before the destination of the transition/implementation current (Article 91).

If the proposed “fallback” rules on the Irish Gaelic edge apply, the ECJ lead hold its ordinary jurisdiction as regards the rules inwards the Protocol on Republic of Ireland indefinitely (Article eleven of the Protocol), as well as at that topographic point volition locomote an indefinite requirement to translate the European Union police rules inwards that Protocol consistently with ECJ representative police (Article 12(2) of the Protocol).

As for the essence rules on the ECJ as well as dispute settlement, Part Six opens with special jurisdiction for the CJEU to dominion on citizens’ rights issues next requests from courts inwards the UK for 8 years after the destination of the transition/implementation current (Article 151). The UK must ready an independent ascendence to assist EU27 citizens enforce those rights (Article 152). Also, the CJEU retains jurisdiction to dominion on the separation provisions as well as European Union police aspects of the fiscal short town after the destination of the transition/implementation current (Article 153).

There volition locomote a Joint Committee ready to monitor as well as implement the understanding (Articles 157-159); that’s non contentious as such. But the hard number volition locomote its role inwards dispute short town betwixt the European Union as well as the UK. (Disputes brought yesteryear individuals as well as companies volition locomote thrashed out inwards the national courts, with possible references to the ECJ inwards low-cal of its wide proposed jurisdiction).

After the destination of the transition/implementation period, a dispute almost interpretation betwixt the parties to the understanding would outset locomote discussed inwards the Joint Committee, which could determine to inquire the ECJ to determine it, if both parties agree. After 3 months, if the dispute was non settled, either political party could unilaterally invoke the ECJ’s jurisdiction (Article 162). If the Court’s ruling inwards that representative was allegedly non complied with, the Court could locomote asked to dominion in 1 trial to a greater extent than on the non-compliance, this fourth dimension imposing a fine (Article 163(1) as well as (2)). Alongside this at that topographic point would locomote the possibility of either side imposing sanctions on the other (Article 163(3)).

Finally, during the transition/implementation period, if the European Union side believes that the UK had non complied with an ECJ ruling, it could suspend precisely about internal marketplace seat benefits for the UK. There is no corresponding powerfulness for the UK.

So far the UK has agreed to only parts of these proposals, mainly the points concerning citizens’ rights as well as the transition/implementation period, along with precisely about aspects of the separation provisions. (See the joint report of the European Union as well as UK from December, discussed here as regards citizens’ rights as well as here as regards other issues, along with my annotation of the proposals on the transition/implementation period.) It has, inwards particular, non agreed to the provisions on dispute settlement. 

Comments

Are the Commission’s proposals justified as a thing of police as well as policy – or are the UK’s objections to them convincing? First of all, the provisions on EU27 citizens’ rights merely elaborate on a previous compromise agreed betwixt the UK as well as the Commission, concerning special ECJ jurisdiction for 8 years as well as an independent ascendence inwards the UK. On the latter point, the Commission’s proposals could locomote strengthened a groovy deal, plus at that topographic point is no justification for delaying the creation of the independent ascendence until the destination of the transition/implementation period, as EU27 citizens volition probable demand assistance before then. So I lead hold suggested amendments to Articles 152 as well as 168 of the proposal.

Secondly, the agreed ECJ jurisdiction during the transition/implementation period merely reflects the overall seat that European Union police as well as the European Union institutions volition apply as usual regarding the UK during this current (apart from the absence of UK presence on the institutions). It would lead hold been preferable to “dock” the UK inwards to the EFTA Court during this current instead, where it would lead hold its ain judge, maybe also applying the EEA Treaty for at to the lowest degree precisely about current so that is has greater input into European Union police (but applies less of it). But the UK authorities seems uninterested inwards this idea.

This brings us to the parts which lead hold non been agreed, as well as are probable to locomote controversial. In my view, it is solely understandable for the UK to aim to bound the jurisdiction of the ECJ post-Brexit as much as possible, on the grounds that it is non a Member State whatever longer as well as the ECJ’s jurisdiction over non-EU countries is traditionally limited. Having said that, it’s impossible to avoid the ECJ’s ain “red lines” inwards its representative police noted above: it breaches European Union police for non-EU bodies to give an interpretation of European Union police which binds the EU. The obvious difficulty hither for the UK, given its “red line” of avoiding time to come ECJ jurisdiction, is that the withdrawal understanding inevitably makes a number of references to European Union law. There mightiness locomote less difficulty avoiding the ECJ as regards the future UK/EU human relationship – but that depends upon the contested query as to how much European Union police the UK volition soundless apply after Brexit.

Seen inwards that light, the Court’s continuing jurisdiction over separation issues (which item how diverse European Union laws volition cease to apply to the UK) as well as European Union police rules inwards the financial settlement provisions would locomote nearly impossible to avoid. Any disputes betwixt the UK as well as the European Union inwards these provisions could only locomote settled yesteryear the ECJ, due to the ECJ blood-red line. So the jurisdiction on those issues inwards Article 153 belike has to stay.

It’s a different query as regards non-judicial sanctions, however. First of all, the prospect of unilateral sanctions yesteryear the European Union against the UK for failure to comply with a judgment during the transition/implementation current is both unnecessary as well as merely obnoxious.  Unnecessary because – at the EU’s ain insistence – the usual jurisdiction of the ECJ volition apply during that period, including the remedy of the ECJ imposing fines for lack of compliance with its prior rulings. There’s no fourth dimension bound work here, since – in 1 trial to a greater extent than nether the Commission’s ain proposals – cases against the UK pending at the destination of the transition/implementation current won’t merely lapse, but volition locomote decided afterward.  Obnoxious because this remedy would apply to the European Union side only (as if no EU27 Member the world has ever breached European Union law!), it would hypocritically care for the UK as both a Member State as well as a non-Member State at the same time, as well as it eschews whatever endeavor at resolving the dispute politically (as good as circumventing the usual requirement for the political party alleging the breach to discharge the burden of proof of proving its claim inwards the ECJ). It’s non fifty-fifty explicit that the EU’s conclusion could locomote judicially reviewed – although it would breach the European Union regulation of the dominion of police if it could non be.

Secondly, after the destination of the transition/implementation period, it’s to a greater extent than complicated: at that topographic point would locomote an endeavor at political dispute settlement, followed yesteryear a possible jurisdiction for the ECJ, followed (if an ECJ ruling was allegedly non complied with) yesteryear a asking for the ECJ to apply sanctions. There’s also a random provision allowing for to a greater extent than sanctions, which should locomote booted into legal orbit forthwith due to its hapless legal drafting. 

Here there’s confusion betwixt treating the UK as a Member State (compulsory ECJ jurisdiction) as well as as a non-Member State (sanctions). The meliorate course of study would locomote to pick out that it volition locomote a non-Member State – focussing, similar the EEA treaty with other non-Member States, on a potential sanction (which either side could apply) if an endeavor at dispute short town fails. The possibility of asking the ECJ to dominion could remain as an option, limiting its jurisdiction to the interpretation of European Union law.   

All these comments – as well as precisely about to a greater extent than technical points – are spelled out inwards to a greater extent than item inwards the annotated text of Part Six attached, which also makes a number of suggestions for amendments of the proposed text.

Barnard & Peers: chapter 10, chapter 27

Photo credit: Irish Gaelic Times

* This weblog postal service was supported yesteryear an ESRC Priority Brexit Grant on 'Brexit as well as UK as well as European Union Immigration Policy'

Annex – proposed text of withdrawal agreement, Part Six, annotated. My comments inwards italics; proposed amendments inwards italics as well as underline.

PART SIX

INSTITUTIONAL AND FINAL PROVISIONS

TITLE I

CONSISTENT INTERPRETATION AND APPLICATION

Article 151

References to the Court of Justice of the European Union concerning Part Two

Where, inwards a representative which has commenced at outset representative inside 8 years from the destination of the transition current before a courtroom or tribunal inwards the United Kingdom, a query is raised concerning the interpretation of Part Two of this Agreement, as well as where a courtroom or tribunal inwards the Great Britain seized with that representative considers that a conclusion on that query is necessary to enable it to give judgment inwards that case, it may asking the Court of Justice of the European Union to give a preliminary ruling on that question. The Court of Justice of the European Union shall lead hold jurisdiction to give preliminary rulings on such requests. The legal effects inwards the Great Britain of such preliminary rulings shall locomote the same as the legal effects of preliminary rulings given pursuant to Article 267 TFEU inwards the Union as well as its Member States. 

Background: This reflects component of para 38 of the articulation report. It sets the eight-year fourth dimension bound starting from the destination of the transition/implementation period, whereas that starting bespeak was non definitively decided inwards the articulation report, as it noted that discussions on the transition had yet to pick out place. It specifies that the CJEU’s powers concern the whole of Part Two, non precisely the vaguer “interpretation of those rights” inwards the articulation report. As agreed, this differs from Article 267 TFEU inwards that terminal courts inwards the UK are non obliged as a dominion to refer cases. However, the legal effects of such rulings are the same as nether Article 267. That number was non mentioned inwards the articulation report, but the CJEU has ruled that its judgments (where its jurisdiction exists) must e'er locomote binding, fifty-fifty as regards non-EU states (see Opinion 1/91, para 38). It is implicit that the Court’s other jurisdiction (notably on infringement proceedings) volition non apply.

According to Article 168, this provision – as well as the whole of Title I of Part Six (Articles 151 to 156) volition only apply from the destination of the transition/implementation period. That temporal limitation appears inwards the text of Article 151, but non Articles 152 to 156.

Comments: It is non clear what volition laissez passer on to cases pending at the destination of this eight-year period. To address such issues, I lead hold a suggested amendment, to add together this sentence: After the destination of this eight-year period, Articles 82(2) as well as (3), 83(2) as well as 85(1) as well as (2) shall apply mutatis mutandis. This would hateful that the CJEU soundless has jurisdiction for cases pending before it as well as courts inwards the UK at the destination of that date, as well as confirm that its judgments after that appointment volition remain binding on the UK. This is perhaps evident anyway from the terminal sentence as well as the words “commenced at outset representative inside 8 years” (and from “litigation brought inside 8 years” inwards the articulation report), but it is meliorate to confirm it explicitly.

If the transition current were extended, that would inwards regulation lead hold knock-on effects on this Article. It should locomote noted that at that topographic point is no fourth dimension bound on the CJEU’s jurisdiction to dominion on the application of this understanding as regards UK citizens inwards the EU27. Nor is at that topographic point whatever other bound on its jurisdiction relating to them (ie terminal courts volition inwards regulation lead hold to ship cases concerning them to the CJEU; infringement proceedings tin apply).

Article 152

Monitoring of the implementation as well as application of Part Two

The Great Britain shall ready an independent Authority to monitor the implementation as well as application of Part Two. That Authority shall lead hold the powerfulness to have as well as investigate complaints from Union citizens as well as their household unit of measurement members, as well as to comport inquiries on its ain initiative, concerning alleged breaches yesteryear administrative authorities of the Great Britain of their obligations nether Part Two. The Authority may brand its findings public. Where it considers that the administrative ascendence concerned has non acted appropriately on its findings, as well as without prejudice to whatever remedies available to the Union citizens or household unit of measurement members concerned, the Authority shall lead hold the correct to convey a legal activity before a competent courtroom or tribunal inwards the Great Britain inwards an appropriate judicial physical care for with a persuasion to seeking adequate redress. The Authority shall inform the European Commission of whatever such legal actions brought before courts or tribunals inwards the United Kingdom. It may also consult the European Commission before bringing such legal actions as well as the European Commission may suggest to the Authority to convey such legal actions.

Background: This is based on component of para twoscore of the articulation report, which provides as follows:

The implementation as well as application of the citizens' rights Part volition locomote monitored inwards the Union yesteryear the Commission acting inwards conformity with the Union Treaties. In the UK, this role volition locomote fulfilled yesteryear an independent national authority; its range as well as functions, including its role inwards acting on citizens' complaints, volition locomote discussed betwixt the parties inwards the side yesteryear side stage of the negotiations as well as reflected inwards the Withdrawal Agreement. There should locomote regular telephone substitution of information betwixt the UK Government as well as the Commission.

Comments: The “scope as well as functions” of this body, inwards the proposal, would be: a) “to have as well as investigate complaints from Union citizens as well as their household unit of measurement members”; b) “to comport inquiries on its ain initiative, concerning alleged breaches” of the rules yesteryear UK “administrative authorities”; as well as c) to “bring a legal activity before a competent courtroom or tribunal inwards the Great Britain inwards an appropriate judicial physical care for with a persuasion to seeking adequate redress”, if it believes that the direction does non react appropriately, “without prejudice to” remedies the European Union citizens as well as their household unit of measurement members have. Implicitly it volition non locomote able to brand its ain binding decisions on complaints brought to it. As for procedural rules: the ascendence “may brand its findings public”; it “shall inform” the Commission on legal actions as well as “may consult” it beforehand; the Commission may also suggest that the ascendence brings such actions.

This clause raises surely questions. In low-cal of the recent botched endeavor to appoint Toby Young to a academy regulator, without next a proper process, at that topographic point mightiness locomote precisely about doubts almost the integrity of the appointment process. The ascendence mightiness lack sufficient staff as well as funding. At the real least, the UK should brand a annunciation attached to the agreement, specifying to a greater extent than item on these points. Although the powerfulness for the ascendence to brand its ain decisions (which the authorities would lead hold to challenge) would locomote useful, the proposed powers (broadly comparable to the Commission’s, although at that topographic point are no details of the physical care for as compared to Article 258-260 TFEU on infringement proceedings) are an essential minimum, as well as hopefully the UK authorities volition non seek to weaken them. 

The query arises what happens if the ascendence gives a disappointing respond to a complaint, or fails to respond inside a reasonable time. Is at that topographic point a remedy against the ascendence inwards that case? Must its decisions locomote reasoned? The Commission may locomote reluctant to force this number because at that topographic point are no effective remedies against its infringement decisions next private complaints – as well as it likes it that way. There are also questions of whether at that topographic point volition locomote fourth dimension limits upon bringing complaints, or upon the ascendence bringing legal proceedings. The ascendence does non appear to lead hold the powerfulness to convey proceedings as regards full general changes to the law, or to comment on them. It seems to lead hold the discretion whether to brand its proceedings public. It is non clear that the authority’s powerfulness to convey proceedings tin Pb to a remedy for the complainant; as well as it would locomote useful if the ascendence could submit observations inwards cases which it didn’t convey itself, inwards accordance with with Articles 154 as well as 155.

Substantively, the Definition of “family members” logically entails an implied cross-reference to the Definition inwards Article 8, inwards low-cal of the reference to Part Two. “Union citizens” are defined inwards Article 2, which applies to the entire agreement.

Note that according to Article 168, this provision volition only apply from the destination of the transition/implementation period.  This seems highly objectionable, since the UK volition locomote rolling out a “settled status” system good before that time, as well as EU27 nationals may demand the assistance this trunk volition offering as before long as possible after Brexit day. I lead hold hence suggested an amendment to Article 168. In comparison, the Commission’s powers to apply its infringement proceedings powers are unlimited inwards time.

To ensure that the powers of this ascendence are effective, I suggest an amendment based on the powers of information protection authorities. It would apply as to the Commission, although it mightiness locomote questioned whether such extra powers alter the “essential elements” of its powers pursuant to ECJ representative law. I would fighting not, since the Commission’s independence from Member U.S. remains intact.

Suggested amendment: The Great Britain shall ready an Authority to monitor the implementation as well as application of Part Two. That Authority shall human activity with consummate independence inwards performing its tasks as well as exercising its powers inwards accordance with this agreement. The Great Britain shall ensure that the Authority has the human, technical as well as fiscal resources, premises as well as infrastructure necessary for the effective performance of its tasks as well as exercise of its powers.

The Authority shall lead hold the powerfulness to have as well as investigate complaints from Union citizens as well as their household unit of measurement members, as well as to comport inquiries on its ain initiative, concerning alleged breaches yesteryear administrative authorities of the Great Britain of their obligations nether Part Two. It shall inform the complainant of the progress as well as the outcome of the investigation inside a reasonable period. [It shall lead hold the powerfulness to club the administrative authorities to ensure compliance with this Agreement.] It shall give reasons for its decisions, which shall locomote bailiwick to effective judicial review.

The Authority shall brand its findings public, with the consent of the complainant. Where it considers that the administrative ascendence concerned has non acted appropriately on its findings, as well as without prejudice to whatever remedies available to the Union citizens or household unit of measurement members concerned, the Authority shall lead hold the correct to convey a legal activity before a competent courtroom or tribunal inwards the Great Britain inwards an appropriate judicial physical care for with a persuasion to seeking adequate redress for the do goodness of the individual(s) concerned. In other pending cases, the Authority may submit written observations to the courts or the tribunals inwards the United Kingdom. With the permission of the courtroom or tribunal inwards question, it may also brand oral observations.

The Authority shall inform the European Commission of whatever such legal actions brought before courts or tribunals inwards the United Kingdom. It may also consult the European Commission before bringing such legal actions as well as the European Commission may suggest to the Authority to convey such legal actions. The ascendence may also suggest to the Commission to commence an infringement physical care for inwards accordance with the Treaties, as well as may submit observations inwards accordance with Article 154.

This Article shall apply mutatis mutandis to the Commission.

Article 153

Jurisdiction of the Court of Justice of the European Union concerning Parts Three as well as Five

Without prejudice to Article 83 of this Agreement, Articles 258, 260, as well as 267 TFEU shall apply inwards honor of the interpretation as well as application of Part Three of this Agreement as well as of applicable Union police referred to inwards Article 129 as well as Article 131(1) or (2) of this Agreement. To this effect, whatever reference made inwards Articles 258, 260, as well as 267 TFEU to a Member State shall locomote read as including the United Kingdom.

Comment: This gives the CJEU its jurisdiction as regards infringement actions as well as preliminary rulings over cases concerning the separation provisions (Part Three) as well as the references to European Union fiscal police inwards Part Five (financial settlement), which volition soundless apply after the destination of the transition/implementation current to the extent that payments are made after that date.

According to Article 168, this provision volition only apply from the destination of the transition/implementation period. The Court’s ordinary jurisdiction volition apply upwardly until to the destination of that period.

The cross-reference to Article 83 covers cases brought before the destination of the transitional/implementation period, which the CJEU volition soundless lead hold jurisdiction to determine afterwards.

Article 154

Submission of statements of representative or written observations

Where a courtroom or tribunal of a Member State refers a query concerning the interpretation of this Agreement to the Court of Justice of the European Union for a preliminary ruling, the conclusion of the national courtroom or tribunal containing that query shall locomote notified to the United Kingdom. The Great Britain shall locomote entitled to submit statements of representative or written observations to the Court of Justice of the European Union inside 2 months of such notification.

Background: This Article partly reflects the minute sentence of para 39 of the articulation report: “In the same vein, it is envisaged to give the UK Government as well as the European Commission the correct to intervene inwards relevant cases before the CJEU as well as before UK courts as well as tribunals respectively.” The text of this Article defines what “relevant cases” are. Note that the Article applies to the entire withdrawal agreement, non precisely the citizens’ rights provisions. According to Article 168, this provision volition only apply from the destination of the transition/implementation period, although dissimilar Article 151 at that topographic point is no terminal appointment when it expires.

Comment: Influenza A virus subtype H5N1 correct of intervention similar this is non unusual. For representative EFTA EEA states tin (and sometimes do) the world their persuasion inwards CJEU cases which are relevant to the EEA treaty. However, it is a  very narrow interpretation of the concept of “relevant cases”. Surely a representative is relevant non only where it concerns the withdrawal understanding as such, but where it concerns an European Union police number which could impact the UK inwards accordance with Article 4(5), which requires the UK’s administrative as well as judicial authorities to lead hold due regard to relevant CJEU representative police decided after the destination of the transition/implementation period. Also it seems appropriate to allow the Authority ready yesteryear Article 152 to intervene where at that topographic point are issues relevant to EU27 or UK citizens, since the UK authorities may locomote reluctant to defend their rights.

I hence suggest 2 amendments. The outset sentence should read: “Where a courtroom or tribunal of a Member State refers a query concerning the interpretation of this Agreement, or a provision of Union police inside the range of Article 4(5) of this Agreement…” A novel sentence at the destination should read: “Where the representative concerns Part Two of this Agreement, this Article shall also apply mutatis mutandis to the Authority referred to inwards Article 152.”

Article 155

Participation of the European Commission inwards cases pending inwards the United Kingdom

Where the consistent interpretation as well as application of Part Two of this Agreement so requires, the European Commission may submit written observations to the courts or the tribunals inwards the Great Britain inwards pending cases where the interpretation of the Agreement is concerned. The European Commission may, with the permission of the courtroom or tribunal inwards question, also brand oral observations. The European Commission shall inform the Great Britain of its intention to submit observations before formally doing so.

Background: This Article partly reflects the minute sentence of para 39 of the articulation report: “In the same vein, it is envisaged to give the UK Government as well as the European Commission the correct to intervene inwards relevant cases before the CJEU as well as before UK courts as well as tribunals respectively.” The text of this Article defines what “relevant cases” are. Unlike Article 154, this Article does not apply to the entire withdrawal agreement, but only to the citizens’ rights provisions. According to Article 168, this provision volition only apply from the destination of the transition/implementation period. However, dissimilar Article 151, it volition non expire after 8 years.

Comment: As far as I know this explicit powerfulness to intervene inwards a national courtroom proceeding is novel, although it could locomote compared to the Commission’s powerfulness to brand observations inwards EFTA Court proceedings. It overlaps with the Authority’s powerfulness to convey cases, as well as (for a number of years) with the UK courts’ powerfulness to inquire the CJEU questions almost the citizens’ rights inwards Part Two.

Article 156

Regular dialogue as well as telephone substitution of information

In club to facilitate the consistent interpretation of this Agreement as well as inwards total deference to the independence of courts, the Court of Justice of the European Union as well as the United Kingdom's highest courts shall engage inwards a regular dialogue, analogous to the 1 which the Court of Justice of the European Union pursues with the highest courts of the Member States.

Background: This Article partly reflects para 39 of the Joint Report, which states: “Consistent interpretation of the citizens' rights Part should farther locomote supported as well as facilitated yesteryear an telephone substitution of representative police betwixt the courts as well as regular judicial dialogue.” However, Article 156 is non limited inwards range to citizens’ rights, as well as makes no limited reference to telephone substitution of representative police (or whatever other “information” referred to inwards the championship of the Article). According to Article 168, this provision volition only apply from the destination of the transition/implementation period.

Comments: It seems odd that at that topographic point is no telephone substitution of information or representative police provided for, especially as the European Union has other treaties with non-EU states which furnish for such exchanges. I suggest an amendment, to add together a novel sentence at the destination of this Article: The Joint Committee shall flora a machinery to ensure regular usual transmission of representative police as well as other information relevant to this Agreement.

TITLE II

INSTITUTIONAL PROVISIONS

Article 157

Joint Committee

1.  A Joint Committee is hereby established, comprising representatives of the Union as well as of the United Kingdom. The Joint Committee shall locomote co-chaired yesteryear the Union as well as the United Kingdom.

2.  The Joint Committee shall come across at to the lowest degree in 1 trial a twelvemonth or at the asking of the Union or the United Kingdom. The Joint Committee shall set its coming together schedule as well as its agenda yesteryear usual consent.

3.  The Joint Committee shall locomote responsible for the implementation as well as application of this Agreement. The Union or the Great Britain may refer to the Joint Committee whatever number relating to the implementation, application as well as interpretation of this Agreement.

4.  The Joint Committee shall:

(a)  supervise as well as facilitate the implementation as well as application of this Agreement;

(b)  decide on the tasks of the specialised committees as well as supervise their work;

(c)  seek appropriate ways as well as methods of preventing problems that mightiness arise inwards areas covered yesteryear this Agreement or of resolving disputes that may arise regarding the interpretation as well as application of this Agreement;

(d)  adopt its ain rules of procedure, as good as rules of physical care for of the specialised committees;

(e)  consider whatever thing of involvement relating to an surface area covered yesteryear this Agreement;

(f)  adopt decisions as well as brand recommendations as set out inwards Article 159; 

(g)  adopt amendments to this Agreement inwards the cases provided for inwards this Agreement.

5.  The Joint Committee may:

(a)  delegate responsibilities to the specialised committees, except those referred to inwards points (b), (d), (f) as well as (g) of paragraph 4; 

(b)  establish other specialised committees than those established yesteryear Article 158 inwards club to assist it inwards the performance of its tasks; 

(c)  change the tasks assigned to the specialised committees or dissolve whatever of those committees; as well as

(d)  take such other activity inwards the exercise of its functions as decided yesteryear the Union as well as the United Kingdom.

6.  The Joint Committee shall number an annual written report on the functioning of this Agreement.

Comment: The Joint Committee has a number of functions nether the Agreement, non precisely inwards relation to citizens’ rights. Its master copy explicit role inwards that surface area volition locomote updating the social safety annex as well as (potentially) beingness a forum for dispute short town – see Articles 162 to 165 below.

Article 158

Specialised committees

1. The next specialised committees are hereby established: 

(a) the Committee on citizens' rights;

(b) the Committee on the other separation provisions;

(c) the Committee on issues related to the isle of Ireland;

(d) the Committee on Sovereign Base Areas related issues;

(e) the Committee on the fiscal provisions.

2. Unless otherwise provided inwards this Agreement, or unless the co-chairs determine otherwise, the specialised committees shall come across at to the lowest degree in 1 trial a year. Additional meetings may locomote held at the asking of the Union, the United Kingdom, or of the Joint Committee. They shall locomote co-chaired yesteryear representatives of the Union as well as of the United Kingdom. The specialised committees shall set their coming together schedule as well as agenda yesteryear usual consent. The specialised committees may depict upwardly draft decisions as well as recommendations as well as refer them for adoption yesteryear the Joint Committee.

3. The Union as well as the Great Britain shall ensure that their respective representatives on the specialised committees lead hold the appropriate expertise with honor to the issues nether discussion.

4. The specialised committees shall inform the Joint Committee of their coming together schedules as well as agenda sufficiently inwards advance of their meetings as well as shall written report to the Joint Committee on results as well as conclusions from each of their meetings. The creation or existence of a specialised commission shall non forbid the Union or the Great Britain from bringing whatever thing direct to the Joint Committee.

Comment: Note that 1 of the specialised committees concerns citizens’ rights. It is probable to come across for precisely about fourth dimension into the future, given the long fourth dimension frame of the application of Part Two of the Agreement.   

Article 159

Decisions as well as recommendations

1.  The Joint Committee shall, for the purposes of this Agreement, lead hold the powerfulness to adopt decisions inwards honor of all matters for which this Agreement so provides as well as brand appropriate recommendations to the Union as well as the United Kingdom.

2.  The decisions adopted yesteryear the Joint Committee shall locomote binding on the Union as well as the United Kingdom, as well as the Union as well as the Great Britain shall implement them. They shall lead hold the same legal effect as this Agreement. 

3.  The Joint Committee shall adopt its decisions as well as brand its recommendations yesteryear usual consent. 

Comment: the only powerfulness to adopt decisions which the Joint Committee has inwards the surface area of citizens’ rights is to adopt novel social safety rules pursuant to Article 31, although its dispute short town powers (discussed below) mightiness locomote relevant. So mightiness its recommendations, although at that topographic point is no explicit reference to them inwards the citizens’ rights part.

TITLE III

DISPUTE SETTLEMENT

Article 160

Cooperation

The Union as well as the Great Britain shall, at all times, endeavor to concord on the interpretation as well as application of this Agreement, as well as shall brand every endeavor through cooperation as well as consultations to brand it at a mutually satisfactory resolution of whatever thing that mightiness touching its operation.

Comment: This is a “best endeavours” Article that points toward trying to uncovering political solutions to disputes. It does non include whatever specific legal obligations but could nevertheless locomote relevant inwards practice, given that disputes nether the EU’s costless merchandise agreements are commonly settled diplomatically.

Article 161

Exclusivity

For whatever dispute betwixt the Union as well as the Great Britain arising nether this Agreement, the Union as well as the Great Britain shall only lead hold recourse to the procedures provided for inwards this Agreement.

Comment: This Article prevents using other agency also those inwards the Agreement to settle disputes, unless the Agreement itself is amended.

Article 162

Settlement of disputes

1. Without prejudice to Article 153, the Union or the Great Britain may convey whatever dispute which concerns the interpretation or application of this Agreement before the Joint Committee.

2. The Joint Committee may settle the dispute through a recommendation. It shall locomote provided with all information which mightiness locomote of usage inwards making possible an in-depth examine of the situation, with a persuasion to finding an acceptable solution. To this end, the Joint Committee shall examine all possibilities to keep the goodness functioning of the Agreement. 

3. The Joint Committee may, at whatever point, determine to submit the dispute brought before it to the Court of Justice of the European Union for a ruling. The Court of Justice of the European Union shall lead hold jurisdiction over such cases as well as its rulings shall locomote binding on the Union as well as the United Kingdom.

4. If the dispute has non been settled inside 3 months after it was brought before the Joint Committee as well as has non been submitted to the Court of Justice of the European Union yesteryear the Joint Committee pursuant to paragraph 3, the dispute may locomote submitted to the Court of Justice of the European Union for a ruling at the asking of either the Union or the United Kingdom. The Court of Justice of the European Union shall lead hold jurisdiction over such cases as well as its rulings shall locomote binding on the Union as well as the United Kingdom.

Comments: According to Article 168, this provision volition only apply from the destination of the transition/implementation period. The dispute short town clause applies to the entire Agreement, non only the citizens’ rights rules. This text has clearly been adapted from Article 111 of the EEA treaty. Para 1 is identical (except for the names of the parties, obviously). Para 2 is identical except for the improver of the words “through a recommendation”. Paras 3 as well as 4 differ, however: nether the EEA Treaty, the EEA Joint Committee tin concord to inquire the CJEU almost a treaty dominion which is identical to European Union law after three months’ discussion (not at whatever time); as well as if the dispute is non resolved or sent to the CJEU after half dozen months’ discussion, as well as so 1 political party tin pick out a cast of safeguard mensurate or disapply a component of the EEA rules due to difference with the other party. It’s also specified that the CJEU rules are binding, although that merely restates the ruling of the CJEU inwards Opinion 1/91 that its rulings must e'er locomote binding. It volition locomote necessary to determine which European Union establishment decides to convey proceedings on behalf of the EU.

In comparing then, the version of the Withdrawal Agreement places far to a greater extent than reliance on the CJEU: allowing before recourse if both sides agree; unilateral recourse after 3 months; jurisdiction over all the agreement, non precisely the European Union police aspects (although admittedly much of the understanding refers to European Union law); as well as eliminating the possibility of settling a dispute yesteryear agency of a safeguard or difference conclusion instead – although Article 165 provides for a sanction by the European Union side only during the transition/implementation period, as well as at that topographic point is an odd disconnected sanctions clause inwards Article 163(3). This provision overlaps with the jurisdiction of the Court over citizens’ rights that volition apply for 8 years after the destination of the transition/implementation period. The CJEU jurisdiction inwards this Article would locomote bailiwick to the rules of physical care for to locomote set out inwards an Annex (see Article 164).

This proposal is problematic because it is one-sided, diverging from the solution inwards the EEA which the European Union found legally as well as politically acceptable. (Suggesting a rather different approach to a similar number could reasonably locomote seen as a cast of “cherry-picking”).  While it would locomote a breach of European Union police to ready a organisation which lets arbitrators et al brand the terminal conclusion on interpretation of European Union police for the European Union (see Opinion 1/92), the EEA organisation was found compatible with European Union police inwards that judgment as well as the obvious query is why non follow that route hither – which would hateful a cast of sanction yesteryear either side instead of recourse to the ECJ? Also, why give the ECJ jurisdiction to dominion on issues inwards the withdrawal understanding which are non European Union police issues – given that at that topographic point is no European Union police requirement to give it such jurisdiction fifty-fifty where the European Union would locomote leap yesteryear an interpretation of such rules?   

I suggest the next amendments, which would convey the text inwards line with the EEA model as well as locomote consistent with the limits set out yesteryear the ECJ inwards Opinion 1/92.

2. The Joint Committee may settle the dispute through a recommendation, which shall non touching the representative police of the Court of Justice of the European Union….

3. If the dispute concerns the interpretation of Union law, the Joint Committee may, at whatever point….

4. If the dispute has non been settled inside 3 months after it was brought before the Joint Committee as well as has non been submitted to the Court of Justice of the European Union yesteryear the Joint Committee pursuant to paragraph 3, either political party may pick out a safeguard measure. Such safeguard measures shall locomote restricted with regard to their range as well as duration to what is strictly necessary inwards club to remedy the situation.  Priority shall locomote given to such measures as volition to the lowest degree disturb the functioning of this Agreement.

If at that topographic point is a dispute concerning the range or duration of safeguard measures, either political party may refer the dispute to arbitration nether the procedures set downward inwards Protocol [xx].  No query of interpretation of the provisions of this Agreement concerning Union police may locomote dealt with inwards such procedures.  The arbitration honour shall locomote binding on the parties to the dispute.

Article 163

Non-compliance

1. Where the Union or the Great Britain consider that the other has non taken the necessary measures to comply with the judgment of the Court of Justice of the European Union resulting from proceedings referred to inwards Article 162, either the Union or the Great Britain may convey the representative before the Court of Justice of the European Union. The Court of Justice of the European Union shall lead hold jurisdiction over such cases as well as its rulings shall locomote binding on the Union as well as the United Kingdom.

2. If the Court of Justice of the European Union finds, inwards proceedings brought before it pursuant to paragraph 1, that the Union or the United Kingdom, as the representative may be, has non complied with its judgement, it may impose a lump amount or punishment payment on it.

3. The Union or the Great Britain may determine to suspend:

(a) parts of this Agreement other than Part Two; or

(b)  parts of whatever other understanding betwixt the Union as well as the United Kingdom, nether the weather condition set out inwards such agreement. 

Any respite nether this paragraph shall locomote proportionate to the breach of obligation concerned, taking into line concern human relationship the gravity of the breach as well as the rights inwards question. It shall locomote bailiwick to judicial review yesteryear the Court of Justice of the European Union. 

Comments: According to Article 168, this provision volition only apply from the destination of the transition/implementation period. The CJEU jurisdiction inwards this Article would locomote bailiwick to the rules of physical care for to locomote set out inwards an Annex (see Article 164).

Paragraphs 1 as well as 2 are similar to Article 260(2) TFEU, which furnish for the Commission to sue a Member State if it has allegedly non implemented a prior ruling inwards an infringement case. The text hither differs inwards that: the prior judgment would non locomote an infringement case, but a dispute short town ruling pursuant to Article 162 of the Agreement; the European Union as such or the UK would convey the case, rather than the Commission; at that topographic point is no reference to the obligation inwards Article 260 TFEU to giving the defending political party “the chance to submit its observations” before the representative is brought; as well as the plaintiff does non lead hold to specify the lump amount or punishment which it wants the Court to impose.

For 8 years, this provision would overlap with the Court’s special jurisdiction over citizens’ rights inwards Article 151 of this Agreement. 

Paragraph 3 is quite different from Article 260 TFEU, as well as the legal drafting hither is….unimpressive. Is this an alternative remedy instead of applying for a lump amount or punishment payment? Or an additional 1 after, before or with a courtroom challenge? Implicitly (but non real clearly) the grounds for applying this dominion would locomote a “breach of obligation” – what obligation though? There is no explicit reference to paragraphs 1 or 2.

In the absence of a cross-reference to Article 162, there’s no explicit obligation to consult as well as attempt to achieve a solution before enforcing this penalty. It would overlap with Article 151 (citizens’ rights) and  Articles 162 as well as 163(1) as well as (2). The 1 clear bespeak is that it can’t locomote used to suspend the citizens’ rights provisions; although presumably a breach of those provisions could locomote used to trigger it. Remarkably, it could locomote used to suspend “any other understanding between” the European Union as well as the UK, although this overreach is directly rendered pointless yesteryear the proviso that this only applies “under the weather condition set out inwards such agreement”.

Needless to say, I suggest an amendment to delete this diabolical paragraph. In fact, my proposed amendment to Article 162 would hateful that the rest of the Article would locomote superfluous too.

Article 164

Procedural rules as well as powers

Proceedings brought to the Court of Justice of the European Union pursuant to Article 162 or 163 shall locomote governed yesteryear the Rules of Procedure set out inwards [Annex y+3] to this Agreement.

Comment: This annex has non yet been filled in. According to Article 168, this provision volition only apply from the destination of the transition/implementation period.

Article 165

Suspension of benefits during the transition period

1.  Notwithstanding Article 126 of this Agreement, if during the transition current the Union considers that the Great Britain has non fulfilled, during the transition period, an obligation nether Union police as found inwards a judgment rendered pursuant to Article 126 of this Agreement inwards accordance with Article 258 TFEU, or that the Great Britain does non honor an club rendered pursuant to Article 126 of this Agreement inwards accordance with Article 279 TFEU, as well as where the functioning of the internal market, of the customs union, or the fiscal stability of the Union or its Member U.S. would locomote jeopardised as a result, the Union may suspend surely benefits deriving for the Great Britain from participation inwards the internal market.

2.  When applying paragraph 1, the Union shall pick out into line concern human relationship the possible consequences of such a respite on the rights as well as obligations of natural as well as legal persons. Any respite nether paragraph 1 shall locomote proportionate to the breach of obligation concerned, taking into line concern human relationship the gravity of the breach as well as the rights inwards question, as well as shall non overstep 3 months. It may, however, locomote renewed.

3.  The Union shall inform the Great Britain of its intention to apply paragraph 1 as well as allow the United Kingdom, inside xx days, to remedy the situation. Any respite shall pick out effect no before than xx days after its notification to the United Kingdom.  

Background: The possibility of this clause was mooted when the Commission proposed Articles on the transition/implementation period. It is at nowadays limited to cases where the ECJ has already ruled inwards an infringement proceeding.  

Comments: For the reasons set out inwards the master copy comments inwards this weblog post, I suggest the unproblematic amendment of deleting this Article. For convenience, inwards summary those arguments are: a) it’s unnecessary because the usual jurisdiction of the ECJ volition apply, including the remedy of the ECJ imposing fines for lack of compliance with its prior rulings; b) there’s no fourth dimension bound work here, since cases against the UK pending at the destination of the transition/implementation current volition locomote decided afterward; c) the proposal assumes that only the UK could breach European Union law, non the EU27; d) it would care for the UK as both a Member State as well as a non-Member State at the same time; e) at that topographic point is no proviso for attempting to resolve the dispute politically; f) it circumvents the usual requirement for the political party alleging the breach to discharge the burden of proof of proving its claim inwards the ECJ; as well as g) there’s no provision for judicial review or arbitration concerning the decision.

TITLE IV

FINAL PROVISIONS

Article 166

Annexes

Protocols [1 to N] as well as Annexes [y to y+x] shall cast an integral component of this Agreement.

Comment: Only the Protocol on Republic of Ireland as well as a few Annexes lead hold been filled in.

Article 167

Authentic texts

This Agreement, drawn upwardly inwards a unmarried original inwards the Bulgarian, Croatian, Czech, Danish, Dutch, English, Estonian, Finnish, French, German, Greek, Hungarian, Irish, Italian, Latvian, Lithuanian, Maltese, Polish, Portuguese, Romanian, Slovak, Slovenian, Castilian as well as Swedish languages, the texts inwards each of these languages beingness as authentic, shall locomote deposited inwards the archives of the Council, which shall transmit a certified re-create to the United Kingdom.

Comment: Provisions on authentic linguistic communication versions are criterion clause inwards treaties. Bilateral treaties betwixt the European Union as well as non-EU countries are e'er valid inwards the languages of all Member U.S. as well as the non-Member State too. In representative of conflict betwixt linguistic communication versions, the ECJ looks at a number of them to determine the overall intention of the drafters, including (where relevant) the non-EU linguistic communication version.

Article 168

Entry into strength as well as application

This Agreement shall come inwards into strength on thirty March 2019. 

Parts Two as well as Three, with the exception of Articles 30(1) as well as 40, as good as Title I of Part Six as well as Articles 162, 163 as well as 164, shall apply as from the destination of the transition period. 

The Protocol on Ireland/Northern Ireland, with the exception of Article 10 thereof, shall apply as from the destination of the transition period.

The Protocol relating to the Sovereign Base Areas inwards Republic of Cyprus shall apply as from the destination of the transition period.

Comment: Although the Agreement volition come inwards into strength on Brexit day, many parts of it would only apply from the destination of the transition/implementation period: Part Two on citizens’ rights (except a provision on participation inwards social safety discussions), Part Three on separation provisions (except a provision on transferring files to authorise pharmaceuticals etc), the Protocols on Republic of Ireland as well as Republic of Cyprus bases (except the specialised commission on Republic of Ireland would locomote ready from Brexit day); the Part Six provisions on the ECJ as well as most dispute short town clauses.

As noted above, it is objectionable that Article 152 (which sets upwardly the Authority designed to assist with applying EU27 citizens’ rights inwards the UK) volition only apply from the destination of the transition/implementation period, because EU27 citizens may demand its assistance before then. I hence suggest an amendment, so that the minute paragraph reads “…as good as Title I of Part Six (with the exception of Article 152) and…”

Conversely, although non mentioned here, precisely about parts of the understanding volition expire at the destination of the transition/implementation period: for instance, Part Four (which concerns that period), as well as Article 165 (sanctions during the transitional period).

Done on [dd/mm/yyyy].

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