4Dispute resolution after exit
Background
68.This chapter looks at the UK and EU’s respective positions on dispute resolution after exit, by:
- outlining their respective approaches to overall issues of governance (supervision and enforcement) of the Withdrawal and future relations agreements; and
- addressing governance for areas of particular sensitivity—citizens’ rights and internal security.
The UK’s position
Overall governance
69.In January 2017, in her Lancaster House speech the Prime Minister set out as a negotiating objective the ending of the jurisdiction of the CJEU:
So we will take back control of our laws and bring an end to the jurisdiction of the European Court of Justice in Britain. Leaving the European Union will mean that our laws will be made in Westminster, Edinburgh, Cardiff and Belfast. And those laws will be interpreted by judges not in Luxembourg but in courts across this country.43
70.This was followed in August of the same year by the UK’s Future Partnership Paper “Enforcement and dispute resolution”.44 Using more precise language that might indicate a softening of position, the Government reiterated that exiting the EU will mean an end to the “direct” jurisdiction of the CJEU. This therefore means that the EU and UK need:
… to agree on how both the provisions of the Withdrawal Agreement and our new deep and special partnership, can be monitored and implemented to the satisfaction of both sides, and how any disputes which arise can be resolved.45
71.The Government has not explained what is meant by “direct” jurisdiction of the CJEU. In her evidence to the Justice Sub-Committee of the House of Lords Professor Dr Christa Tobler of the Institution for European Global Studies described the distinction as “very difficult to explain”.46 It clearly includes making the CJEU first point of recourse in resolving a dispute. She thought that it might cover an arrangement as found in the EU-Ukraine Agreement for a Deep and Comprehensive Free Trade Area where a dispute as to the meaning of certain provisions relating to regulatory approximation imposing obligations defined by reference to EU law must be referred to the CJEU whose decision is binding on the arbitration panel.47
72.The Government’s Future Partnership paper sets out some precedents for dispute resolution ranging from the EFTA Court to the WTO dispute resolution procedure and purely diplomatic resolution. It does not, however, indicate what would be the choice of the UK, simply stating that the UK will “engage constructively to negotiate an approach to enforcement and dispute resolution which meets the key objectives of both the UK and EU in underpinning the effective operation of a new, deep and special partnership”.48
73.However, the Government was clear that giving the courts of one party direct jurisdiction would be incompatible with the sovereignty and legal autonomy of the parties to an international agreement and would fly in the face of established practice and precedent:
one common feature of most international agreements, including all agreements between the EU and a third country, is that the courts of one party are not given direct jurisdiction over the other in order to resolve disputes between them. Such an arrangement would be incompatible with the principle of having a fair and neutral means of resolving disputes, as well as with the principle of mutual respect for the sovereignty and legal autonomy of the parties to the agreement. When entering into international agreements, no state has submitted to the direct jurisdiction of a court in which it does not have representation.49
74.We agree with the Government and this principle must be adhered to. The same principle applies to the whole of this chapter, including in relation to our examination of the Secretary of State for Exiting the EU on 6 March 2018.
75.Soon after the publication of the Government paper, at the end of September 2017, the Prime Minister gave her second major speech on the future relationship of the UK and EU in Florence.50 With respect to the future economic partnership, she ruled out the CJEU as the sole forum for resolving disputes:
It is, of course, vital that any agreement reached—its specific terms and the principles on which it is based—are interpreted in the same way by the European Union and the United Kingdom and we want to discuss how we do that. This could not mean the European Court of Justice—or indeed UK courts—being the arbiter of disputes about the implementation of the agreement between the UK and the EU however. It wouldn’t be right for one party’s court to have jurisdiction over the other. But I am confident we can find an appropriate mechanism for resolving disputes.51
76.The Prime Minister reiterated these comments when at the Munich Security Conference, she accepted that “we will need to agree a strong and appropriate form of independent dispute resolution across all areas of our future partnership in which both sides can have necessary confidence”.52
77.On 28 February 2018 the EU produced its proposed legal text of the Withdrawal Agreement.53 This provides for the CJEU to be the ultimate arbiter of disputes concerning the interpretation and application of the Withdrawal Agreement. This is discussed in more detail below.
78.By way of response to the proposed EU text:
- The Times on 1 March54 indicated that the Brexit Secretary wrote to Conservatives MPs saying that the UK acknowledged there had to be a mechanism for governing and enforcing the Withdrawal Agreement but “this cannot mean the continuing jurisdiction” of the CJEU.
- The Prime Minister in her Mansion House Speech55 said that there were still some outstanding issues to be resolved on the Withdrawal Agreement, “we have made clear our concerns about the first draft the Commission published on Wednesday” and that “some points of difference remain” but that she was confident that these could “be resolved in the days ahead”.
79.The focus of the Prime Minister’s speech at the Mansion House was not the Withdrawal Agreement, nor the implementation period, but the UK position on a future relations agreement with the EU. She acknowledged several “hard facts” about the CJEU’s continuing influence once transition was over:
- “ … even after we have left the jurisdiction of the ECJ, EU law and the decisions of the ECJ will continue to affect us. For a start, the ECJ determines whether agreements the EU has struck are legal under the EU’s own law—as the US found when the ECJ declared the Safe Harbor Framework for data sharing invalid”.
- “When we leave the EU, the Withdrawal Bill will bring EU law into UK law. That means cases will be determined in our courts. But, where appropriate, our courts will continue to look at the ECJ’s judgments, as they do for the appropriate jurisprudence of other countries’ courts. And if, as part of our future partnership, Parliament passes an identical law to an EU law, it may make sense for our courts to look at the appropriate ECJ judgments so that we both interpret those laws consistently”.
- “As I said in Munich, if we agree that the UK should continue to participate in an EU agency the UK would have to respect the remit of the ECJ in that regard”.56
80.However, she emphasised the need for recognition of judicial and legal autonomy after UK exit from the EU:
But, in the future, the EU treaties and hence EU law will no longer apply in the UK. The agreement we reach must therefore respect the sovereignty of both the UK and the EU’s legal orders. That means the jurisdiction of the ECJ in the UK must end. It also means that the ultimate arbiter of disputes about our future partnership cannot be the court of either party.57
81.The Prime Minister also noted that UK associate membership of EU agencies as part of a future relationship might accommodate the judicial and legal autonomy of the UK better:
associate membership could permit UK firms to resolve certain challenges related to the agencies through UK courts rather than the ECJ. For example, in the case of Switzerland, associate membership of the European Aviation Safety Agency means that airworthiness certifications are granted by its own aviation authority, and disputes are resolved through its courts. Without its membership, Swiss airlines would need to gain their certifications through another member state or through the Agency, and any dispute would need to be resolved through the ECJ.58
82.The emphasis the Prime Minister placed in the Mansion House speech on the need for an independent arbitration model for dispute resolution for a future relations agreement was notable. It consisted of the second of her five “foundations” that must “underpin” our “trading relationship”:
Second, we will need an arbitration mechanism that is completely independent—something which, again, is common to Free Trade Agreements. This will ensure that any disagreements about the purpose or scope of the agreement can be resolved fairly and promptly.59
83.On 6 March we asked David Davis, the Secretary of State for Exiting the European Union, whether the Government intended the CJEU to have exclusive jurisdiction over the UK after exit, particularly in relation to the Withdrawal Agreement. He told us:
Let us separate it out. On the operation of the treaty, as the Prime Minister has said, you do not allow the court of one side of a treaty to arbitrate over the whole treaty. There has to be an independent arbitration mechanism. That is separate, of course, from the fact that the Court will have rights, as it were, during the course of the implementation period in the UK over single market matters and the like. But that is not the operation of the treaty.60
84.He reiterated that the Government’s aim is to avoid basing the future relations agreement on “principles of EU law” as “the European Court takes to itself the monopoly of decision on matters of EU law”.61 He explained “We would foresee making that European law. What we are talking about is trying to get mutual recognition arrangements on equivalence of standards” with the intention that “the arbitration mechanism” would “rule on whether the action one side or the other—not just us but the European Union—had taken was some sort of unfair competition, using regulation in an unfair competitive manner. We would not expect in any case that to be a CJEU arbitration mechanism”.62
85.We also asked whether the UK could continue to benefit from membership of EU agencies without being under the jurisdiction of the CJEU. Mr Davis stressed that the Prime Minister had only said that the UK would “explore that possibility”. He conceded that there were “more difficult ones” in the “context of justice and home affairs”. He also reverted to the Prime Minister’s example of the Swiss association agreement with the European Aviation Safety Agency.63
86.Whilst not advocated by the Government, there has been some support for the other ways to construct a dispute resolution mechanism by a court but not ceding sovereignty to the CJEU. The most important are the “two pillar systems” involving separate courts, each having jurisdiction over different parties to the agreement. We prefer such a proposal.
87.It would be possible to “dock” into the EFTA Court—i.e. essentially “borrow” it as a ready-made court to act as a separate pillar for the UK. This has been advocated by the former President of the EFTA Court, Carl Baudenbacher.64
88.It would also be possible to create a free-standing court (an “International Treaties Court”) to act as a central point providing guidance to non-specialist courts and tribunals throughout the UK on the interpretation of UK legislation which implements the Withdrawal Agreement.65 We concur with this type of freestanding court.
89.When the UK leaves the EU on 29 March 2019, the ECJ will cease to be a multinational court in which judges from the UK and EU Member States equally participate. In international practice it is against accepted norms for a State to agree to a treaty which grant to the organs of the other treaty party (whether political or judicial) the right to interpret the State’s treaty obligations.
90.That international practice is reflected in the EU’s own treaties. There are virtually no cases in which any non-Member state has accepted the binding direct jurisdiction of the ECJ. Even Andorra and San Marino, despite being tiny and surrounded by EU territory, have conventional bilateral international arbitration clauses in their agreements with the EU.
91.By contrast, international practice is that the courts of one treaty party should have regard to judgments of the courts of other parties to the same treaty, in order to seek consistent interpretation on the basis of mutual respect for their judgments. What is critical to maintaining the autonomy of both parties’ courts is that this process is mutual (i.e. two-way), and that such judgments are treated as persuasive but not binding.
92.If a mechanism is needed for the interpretation of a treaty which binds both treaty parties, overwhelming practice is for that to be done by a neutral international judicial or arbitration mechanism. Conventionally this can be achieved by each party nominating an equal number (one or more) judges or arbitrators, and a neutral chairman with a casting vote being selected by a neutral mechanism. Such a mechanism can be seen for example in CETA Article 29.7.
Citizens’ Rights
93.Before the Joint Report, ending Phase 1 of the negotiations, was agreed in December 2017,66 the UK first appeared to resist any involvement of the CJEU in relation to EU citizens’ rights under a Withdrawal Agreement. In the UK’s Future Partnership paper on “Enforcement and Dispute Resolution”, the Government argued that in the case of rights or obligations arising under either the Withdrawal Agreement (including the provisions on citizens’ rights) or the future relationship agreement both in the UK and in the EU, individuals and businesses should be able to enforce “within the internal legal orders of the UK and the EU respectively”, commenting that “ending the direct jurisdiction of the CJEU in the UK “would not “weaken the rights of individuals” nor call into question the UK’s commitment to comply with its international legal obligations.67
94.However, by the time of the Prime Minister’s Florence speech,68 the position had subtly shifted. Referring to the rights of EU citizens, the Prime Minister stated that, in addition to incorporating the Withdrawal Agreement into UK law, she wanted UK courts to be able to “take into account the judgements of the European Court of Justice with a view to ensuring consistent interpretation”.69
95.The Joint Report goes further in providing for continuing references on matters of interpretation to the CJEU concerning EU citizens’ rights:
This Part of the Agreement establishes rights for citizens following on from those established in Union law during the UK’s membership of the European Union; the CJEU is the ultimate arbiter of the interpretation of Union law. In the context of the application or interpretation of those rights, UK courts shall therefore have due regard to relevant decisions of the CJEU after the specified date. The Agreement should also establish a mechanism enabling UK courts or tribunals to decide, having had due regard to whether relevant case-law exists, to ask the CJEU questions of interpretation of those rights where they consider that a CJEU ruling on the question is necessary for the UK court or tribunal to be able to give judgment in a case before it. This mechanism should be available for UK courts or tribunals for litigation brought within 8 years from the date of application of the citizens’ rights Part.70
96.The Joint Report was translated by the Commission into draft legal text of a Withdrawal Agreement, published on 28 February 2018 (discussed as part of the EU’s position below.).71 The Government has yet to respond formally to that text.
Security
97.In her Munich speech, the Prime Minister set out the ambition to conclude a new Treaty “ to underpin our future internal security relationship” which:
must be respectful of the sovereignty of both the UK and the EU’s legal orders. So, for example, when participating in the EU agencies the UK will respect the remit of the European Court of Justice.72
98.EU law underpinning the “Area of Freedom, Security and Justice” under Title V of Part 3 of the Treaty on the Functioning of the European Union (TFEU)73 relies on the principle of mutual recognition. Based on this and the principle of mutual trust, the courts of one Member State accept and give effect to decisions of courts in another (for example, the European Arrest Warrant). Within the EU that mutual trust is underpinned by the role of the CJEU.74 This, however, would not apply after the repeal of section 3 of the European Communities Act 1972.
The EU’s position
99.The EU has set out its position in a series of papers produced by the Commission, which in some cases have been formalised into Council or European Council Guidelines. It is important to note that the European Parliament (EP) is also a key player in the UK’s exit and future relations negotiations since:
- the EP’s consent will be required for the Withdrawal Agreement75 and for a future relations agreement; and
- the EP could request an opinion from the CJEU as to whether either of those agreements are compatible with the Treaties and the EU Charter of Fundamental Rights.76
100.This latter point raises questions about the influence of the Charter in the UK. Although the European Union (Withdrawal) Bill intends to exclude the Charter from “EU retained law”,77 it would seem likely that as regards citizens’ rights at the very least, the Charter may continue to have an indirect or “back door” impact on UK law arising from obligations in a Withdrawal Agreement for the UK courts to have “due regard” to CJEU case law and to voluntarily refer questions of interpretation to the CJEU for eight years after exit.
101.We asked the Secretary of State for Exiting the European Union whether the Charter could continue to apply through citizens’ rights provisions. He told us:
No, I don’t believe so. This is about interpretation. Bear in mind also, when you talk about the ECJ being involved, that we are saying that the British courts have the right, effectively, to ask for advice. Whether they take the advice is up to them, but where there is no precedent, they will seek advice. The reason for that is that we are seeking to make the rights given in Britain to European citizens equivalent to the rights given in Europe to British citizens, so that is the reasoning for it. You are quite right, the referral back has a sunset clause of eight years.78
Overall governance
102.The EU first set out some “Essential Principles on Governance”79 for the Withdrawal Agreement in its position paper of 12 July 2017. These arrangements are inconsistent with the repeal of section 3 of the European Communities Act 1972. In short, this states that the Agreement should “include appropriate dispute settlement mechanisms regarding the application and interpretation of the Withdrawal Agreement, which respect the Union’s autonomy and its legal order, including the role of the CJEU” as regards, “in particular, the interpretation and application of Union law”.80 In more detail, it envisaged:
- A Joint Committee, comprised of UK and EU representatives, to oversee the operation and implementation of the Withdrawal Agreement;
- In the event of dispute, for matters to be first discussed in the Joint Committee and then referred to the CJEU either jointly by both parties at any time or by either party three months after the Joint Committee first being “seized” of the matter;
- An effective mechanism to ensure compliance with CJEU judgments, including the possibility of the imposition of fines or the suspension of certain parts of the Agreement.
103.The reference to the autonomy of the Union’s legal order including that of the CJEU is critical. The position paper asserts that any agreement that the EU enters into with the UK must be consistent with the EU Treaties. Any dispute resolution procedure must comply with conditions laid down by the CJEU to preserve its role as the exclusive arbiter of the Treaties. This precludes, in particular:
- CJEU judges sitting on a common tribunal with judges of other countries;
- A tribunal set up under an international agreement interpreting EU law or elements of that agreement that correspond to EU law.81
104.Commenting on the relevance of the “autonomy” principle to dispute resolution mechanisms, Professor Dr Christa Tobler drew on the Swiss experience in negotiating with the EU on governance arrangements:
In my opinion, whether or not there is a realistic alternative to the European Court of Justice depends on the content of any future agreement that the UK might conclude with the European Union, be it the withdrawal agreement or any future trade agreement, because we in Switzerland have learned that as soon as there is EU law in such an agreement—elements that are taken from EU law—the European Union tends to emphasise its doctrine of the autonomy of the European Union legal order. As you know, that means that the Court of Justice must be the ultimate court to rule on the meaning of that law. We have found that the European Union has become increasingly less flexible on that matter.82
105.It is a feature of this “autonomy” principle that the CJEU requires its rulings to be binding on questions of interpretation of EU law or EU law-based provisions as part of any dispute resolution or otherwise, for example, in the Ukraine Association Agreement.83
106.In the Joint Report,84 there was no political agreement on overall governance other than in relation to citizens’ rights. Before the publication of the text of the Withdrawal Agreement, the only other indications of the Commission’s thinking on governance can be gleaned from the Commission’s Slides on Governance published in January 2018.85 These address governance of both the Withdrawal Agreement and Agreement(s) on future relations between the EU and the UK:
- “Overall governance” of the Withdrawal Agreement reflects the Commission’s July 2017 Governance paper but adds that CJEU judgments in response to reference by either party should be binding and enforceable. We do not agree.
- In relation to governance of future relations agreement(s), the slides do not recommend a preferred model but rather set out some guiding principles.
107.In the draft text of the Withdrawal Agreement published by the Commission on 28 February,86 overall governance is mainly87 addressed in:
- Title II “Institutional Provisions”,88 dealing with the creation and operation of a Joint Committee and Specialised Committees (on citizens’ rights, other separation provisions, Ireland, Sovereign Base Area and financial provisions); and
- Title III “Dispute Settlement”,89 setting out the process for settling disputes, which, ultimately, enables either the UK or the EU to refer the matter to the CJEU for a binding ruling.
108.The Joint Committee proposed by the EU in the draft Withdrawal Agreement would:
- be comprised of both EU and UK representatives and co-chaired;90
- be tasked with the supervision, implementation and application of the Agreement;91
- adopt decisions by “mutual consent” which would “be binding on the Union and the United Kingdom” and have “the same legal effect” as the Agreement itself;92 and
- make non-legally binding Recommendations.93
109.In short, the proposed Dispute Settlement mechanism involves the CJEU as the ultimate arbiter of disputes, with enforcement involving the prospect of fines for not complying with a CJEU judgment and possible suspension of the non-citizens’ rights parts of the Agreement. The mechanism is exclusive, meaning that neither party can seek to resolve their differences regarding the application or interpretation of the Agreement using any other means of dispute resolution.
110.In more detail, the proposed text envisages a series of procedural steps and requirements:
- The UK and EU must first try to resolve their dispute through cooperation and consultation.94
- Failing that, either party may bring the dispute before the Joint Committee.95
- The Joint Committee may settle the dispute through a Recommendation but it may also decide “at any point” to submit the dispute to the CJEU for a ruling which will be binding on both parties.96
- Either party may request a reference to the CJEU if the dispute has not been settled and the matter has not been referred by the Joint Committee within three months of being brought to the Committee.97
- Where either party considers the other has not complied with a ruling of the CJEU they may apply to the Court for fines to be imposed on that party.98
- But the parties also have the power to suspend any non-citizens’ rights parts of the Agreement, subject to the judicial review of the CJEU and as long as the suspension is proportionate to the breach in question.99
111.This is, formally, more stringent than the EU’s agreement with other countries although in practice the CJEU holds sway in connection with some agreements, such as the EEA.
112.On 7 March 2018 draft European Council guidelines on a future partnership with the UK entered the public domain.100 The draft document states:
- the role of the CJEU will be fully respected;101
- there will need to be “full respect for fundamental rights” and “effective enforcement and dispute settlement mechanisms” for future Area of Freedom, Security and Justice (ASFJ) cooperation;102
- governance will need to include “management and supervision, dispute settlement and enforcement, including sanctions and cross-retaliation mechanisms”;103
- but governance would be determined by the “content and depth” of the future relationship, the need to ensure effectiveness and legal certainty and the autonomy of the EU legal order, including the role of the CJEU “as developed in jurisprudence”.104
113.We do not accept the draft European Council guidelines or any proposal which assumes that the United Kingdom will remain subject to the direct jurisdiction of the CJEU after 29 March 2019 or, if agreed, the end of any transitional period (save for the eight year period in respect of EU citizens’ rights). This would be incompatible with the repeal of the European Communities Act 1972.
The European Parliament’s position
114.The European Parliament’s position on overall governance of a Withdrawal Agreement is set out in its Resolution of 5 April 2017. It wants the Agreement to designate the CJEU as “competent authority for the interpretation and enforcement of the withdrawal agreement”.105
115.On a future relations agreement, a European Parliament Motion for a Resolution106 of 7 March 2018 envisages an association agreement including “a robust dispute resolution mechanism, thus avoiding a proliferation of bilateral agreements and the shortcomings which characterise the EU’s relationship with Switzerland”.107 Adding that this should include “governance structures” including “the competence of the CJEU in the interpretation of questions related to EU law”,108 it stresses that “the design of governance arrangements should be commensurate to the nature, scope and depth of the future relationship”.109 It considers that for “provisions based on EU law concepts, the governance arrangements should provide for referral to the CJEU”, but for other provisions not “relating to Union law” an “alternative dispute settlement mechanism can only be envisaged if it offers equivalent guarantees of independence and impartiality to the CJEU”.110
Citizens’ rights
116.The EU first set out its vision for special governance of EU citizens’ rights in its July 2017 Governance paper. This fed into what was agreed with the UK in the Joint Report and is summarised in the Commission’s January 2018 slides.
117.The agreement in the Joint Report has been translated by the Commission into the draft text of the Withdrawal Agreement111 as follows:
- Jurisdiction for the CJEU to give binding preliminary rulings112 to the UK courts for a period of eight years from the end of the implementation period on the interpretation of citizens’ rights provisions;113
- The creation of an Independent Authority to supervise the implementation of the citizens’ rights provisions which may bring a legal action before UK courts;114 and
- The right for the Commission to make written and (if permitted by the court) oral submissions in citizens’ rights proceedings in the UK courts.115
118.The European Parliament has consistently supported a role for the CJEU to interpret citizens’ rights as provided by the Withdrawal Agreement and endorsed the Joint Report in that respect.116 Moreover, in its Resolution of 5 April 2017, it stipulated that EU citizens’ rights in the UK should be given “the protection of the integrity of Union law, including the Charter of Fundamental Rights, and its enforcement framework”.117
Security
119.An indication of the EU’s position on dispute resolution mechanisms for future cooperation with the UK in the AFSJ area is provided in their Slides of 24 January.118 These indicate that the depth of cooperation will be determined by factors including the strength and effectiveness of any enforcement and dispute settlement mechanism.
Our conclusions
120.The question of whether CJEU jurisdiction is direct or indirect is central to the Government’s position on suitable dispute resolution for the EU-UK Withdrawal and Future Relations agreements. However, little certainty has been provided about this distinction and we ask the Government to clarify. If there is a requirement to refer an issue to the CJEU and its interpretation is binding, there would be little difference in substance between “direct “ and “non-direct” jurisdiction. It would be otherwise if the requirement was limited to taking account of the decisions of the CJEU, the ability to refer a matter to the CJEU was voluntary, or the decision of the CJEU was not binding.
121.We agree with the Prime Minister when she recognised as a “hard fact” in her Mansion House speech the potential for ongoing influence of the Court of Justice on the UK, irrespective of the choice of dispute resolution mechanisms after UK exit from the EU. But we welcome, in particular, her emphasis throughout the speech on the need to respect the sovereign legal orders of both the EU and UK by having an “independent arbitration mechanism” as part of a future relations agreement.
122.We also consider that the example of Switzerland in its governance negotiations with the EU leads to the apparent conclusion that it will be difficult for the UK to remain wholly unaffected by judgements of the CJEU in its relations with the EU after exit. However, the Swiss example is based on a completely different constitutional relationship with the EU and furthermore does not take account of the repeal of section 3 of the European Communities Act 1972.
123.This is in part due to the principle of legal autonomy imposed by the CJEU upon the EU.
124.The Prime Minister said in her Munich and Mansion House speeches that the UK would “respect the remit” of the CJEU in respect of any future participation in agencies. We ask the Government to clarify what this means and whether it still thinks the example of the Swiss association agreement in relation to EASA holds good in the light of recent developments in EU-Switzerland governance negotiations.
125.Future EU-UK cooperation on aspects of the “Area of Freedom, Security and Justice” based on the principles of mutual trust and recognition will be difficult to divorce from the jurisdiction of the CJEU. However, we note the example of the EU Iceland and Norway Agreement on Surrender (equivalent to the European Arrest Warrant) which involves a diplomatic solution to disputes.
126.The progress of negotiations to date and the logic of close ongoing relations between the UK and the EU indicate that there is little prospect of a dispute resolution mechanism that is anything less than binding arbitration.
127.The European Parliament holds some key cards in the process of putting both a Withdrawal and Future Relations agreement in place. It could either withhold its consent or request an Opinion from the CJEU on those agreements compatibility with EU law. Bearing that in mind, we ask the Government to set out its analysis of the model for future relations dispute resolution outlined in the EP resolution approved on 14 March.
43 The Prime Minister’s Lancaster House Speech, “The Government’s negotiating directives for exiting the EU”, 17 January 2017
44 HM Government “ Enforcement and dispute resolution: a Future Partnership Paper”, 23 August 2017
45 Ibid, paragraph 1, page 2
48 Ibid, paragraph 68, page 12
49 Ibid, paragraph 29, page 6
50 The Prime Minister’s Florence speech: “A new era of cooperation and partnership between the UK and the EU”, 22 September 2017
51 Ibid
52 The Prime Minister’s speech at the Munich Security Conference, 17 February 2018, paragraphs 22-24, page 5
53 European Commission Draft Withdrawal Agreement on the withdrawal of the UK from the EU and the European Atomic Energy Community, 28 February 2018
54 See “Brexit: Donald Tusk sets scene for tense talks with Theresa May on Irish Border”, The Times 1 March 2018 [ Paywall ]. He is reported to have added in that letter that the UK would not accept “punitive sanctions” from Brussels for breaching the terms of the transitional deal with the EU.
55 The Prime Minister’s speech on “Our Future Economic Partnership with the European Union” 2 March 2018
56 Ibid
57 Ibid
58 We note that the Financial Times of 5 March 2018 reported that “Switzerland was softening its historic opposition to accepting the rule of foreign courts, as it seeks to secure its relationship with the EU in a deal that could set a precedent for Britain’s future ties with the bloc”.
59 Chatham House, EFTA Court Could Answer Post-Brexit Judicial Quandary, 31 January 2018
62 Ibid
64 For example “Could the UK sign up to the EFTA Court after Brexit?” and in evidence taken by the Exiting EU Committee on 7 February 2018
65 Adjudication Treaty Rights in post-exit Britain by Martin Howe QC
66 Joint report from the negotiators of the European Union and the United Kingdom Government on progress during phase 1 of negotiations under Article 50 TEU on the United Kingdom’s orderly withdrawal from the European Union, TF50 (2017) 19 – Commission to EU 27, 8 December 2017
67 HM Government “ Enforcement and dispute resolution: a Future Partnership Paper”, 23 August 2017
68 The Prime Minister’s Florence speech: “A new era of cooperation and partnership between the UK and the EU”, 22 September 2017
69 Ibid
70 Joint report from the negotiators of the European Union and the United Kingdom Government on progress during phase 1 of negotiations under Article 50 TEU on the United Kingdom’s orderly withdrawal from the European Union, TF50 (2017) 19 – Commission to EU 27, 8 December 2017
71 European Commission Draft Withdrawal Agreement on the withdrawal of the UK from the EU and the European Atomic Energy Community, 28 February 2018
72 The Prime Minister’s speech at the Munich Security Conference, 17 February 2018, paragraphs 22-24, page 5
73 Formerly known as Justice and Home Affairs (JHA)
74 The decision of the Irish Supreme Court in the O’ Connor judgment is illustrative here of importance of CJEU oversight to mutual trust and recognition in the ASFJ field.
75 Article 50(2) TEU
76 Article 218(11) TFEU
77 Clause 5(4)
79 Position Paper on Governance, prepared by the Commission’s Article 50 Taskforce, TF50 (2017) 4 – Commission to UK, 12 July 2017
80 Ibid, page 1
81 The position is conveniently set out in “The EU and international dispute settlement” by a former judge of the CJEU, Allan Rosas. The principles have recently been applied by the CJEU in its judgment of 6 March 2018 in case C-284/16.
84 Joint report from the negotiators of the European Union and the United Kingdom Government on progress during phase 1 of negotiations under Article 50 TEU on the United Kingdom’s orderly withdrawal from the European Union, TF50 (2017) 19 – Commission to EU 27, 8 December 2017
85 Internal EU27 preparatory discussions on the framework for the future relationship: “Governance”, TF50 (2018) 22/2 - Commission to the EU27, 19 January 2018
86 European Commission Draft Withdrawal Agreement on the withdrawal of the UK from the EU and the European Atomic Energy Community, 28 February 2018
87 However, there are also some relevant provisions in Title 1 “Consistent Interpretation and Application”, namely Article 153 “ Jurisdiction of the CJEU concerning Parts Three and Five” (Separation and Financial Settlement issues.
88 Articles 157-159. Article 155 merely provides for procedural matters relating to the intervention of the UK in preliminary references on the interpretation of the Withdrawal Agreement from the national courts of the 27 Member States
89 Articles 160-165
90 Article 157(1)
91 Specific tasks and competences are listed in Article 157(4).
92 Article 159(2)
93 Article 159 (3)
94 Article 160
95 Article 162(1)
96 Article 162(2)
97 Article 162(4)
98 Article 162(1) and (2).
99 Article 163(3)
100 Referred to in a statement by Donald Tusk, EUCO President and published on the BBC website, 7 March 2018.
101 Ibid, paragraph 5
102 Ibid, paragraph 10(i)
103 Ibid, paragraph 12
104 Ibid, paragraph 12
105 Paragraph 17, of the Resolution of 5 April 2017
106 Motion [B8.0135/2018] for a Resolution to wind up the debate on the framework of the future EU-UK relationship. This was approved in the EP Plenary of 14 March.
107 Ibid, paragraph 5
108 Ibid, paragraph 38
109 Ibid, paragraph 40
110 Ibid, paragraphs 40-43
111 European Commission Draft Withdrawal Agreement on the withdrawal of the UK from the EU and the European Atomic Energy Community, 28 February 2018
112 As currently for a Member State’s national court as provided by Article 267 TFEU
113 Article 151
114 Article 152
115 Article 155
116 Resolution of 13 December 2017
117 Resolution of 5 April 2017, paragraph 18
118 Internal EU27 preparatory discussions on the framework for the future relationship: “Police & judicial cooperation in criminal matters”, TF50 (2018) 26/2, 29 January 2018
Published: 20 March 2018