In this post, Jack Williams of Monckton Chambers discusses Advocate General Biondi’s recent Opinion in C-413/24 Vlaams Gewest v P&O Ferries EU:C:2025:490in which the Advocate General opines on whether the UK-EU Trade and Cooperation Agreement (“TCA”) is capable of direct effect and whether it incorporates EU obligations upon which P&O can rely post Brexit.
The case concerns a preliminary reference from Belgium concerning the legality of a fixed maritime fee imposed by the Vlaams Gewest (Flemish Region, Belgium) on incoming sea vessels. P&O has systematically contested the invoices for such fees on the basis that they are unlawfully discriminatory and a restriction on its freedom to provide services.
The Flemish Region brought domestic proceedings seeking an order for P&O to pay the invoices which have remained unpaid since 1996, together with statutory interest. In those domestic proceedings, P&O claimed that the national legislation is incompatible with EU law and should be disapplied since the fee is, for the period until Brexit, contrary to its rights to provide maritime transport services under Article 56 TFEU and Article 1 of Council Regulation 4055/86, and, for the period since Brexit, contrary to its rights under Article 191 of the TCA. In the latter regard, P&O submitted that it could continue to rely, in respect of invoices issued since Brexit, on the incompatibility of the Flemish legislation with the freedom to supply services under EU law i.e. Article 56 TFEU and Article 1 of Council Regulation 4055/86.
At its heart, the case deals with whether a port fee regime that targets international (but not domestic) maritime services complies with EU internal market law (the subject matter of the first and second questions from the domestic court). But it also provides the Court of Justice an opportunity to clarify how much of the EU’s services framework still applies, if at all, to UK-based operators post-Brexit under the TCA (the subject matter of the third question from the domestic court). In this post, I summarise only the Advocate General’s conclusions on the third question of the domestic court concerning the application and effect of the TCA.
The contents of the TCA do not necessarily equate to, or incorporate, EU law
Article 191 TCA establishes that both the European Union and United Kingdom shall, by various means, “implement the principle of unrestricted access to the international maritime markets and trades on a commercial and non-discriminatory basis”. Essentially this establishes a principle of equal treatment.
As Advocate General Biondi opines, however, that Article does not, contrary to P&O’s submission, “literally transpose… the freedom to provide services enshrined in Article 56 TFEU” (para. 46). By seeking to read principles of EU law into Article 191 TFEU, P&O’s submission essentially sought “to accord to the TCA effects which are not its own” (para. 51), in particular the substantive rights under EU law and the EU law remedy of disapplication of conflicting national law. But, quite simply, following Brexit, P&O “cannot rely directly on EU law” (para. 53).
This conclusion appears obviously correct as a simple matter of interpretation of Article 191 TCA. Although that Article may well appear similar to EU law on the freedom to provide maritime services, it neither incorporates nor “enshrines” that distinct source of law (including resulting remedies under EU law) into the distinct international agreement, the TCA, which now governs the relationship between the EU and UK.
Direct Effect of Article 191 TCA
The next question became, therefore, whether Article 191 TCA, as distinct from internal EU law, had any direct effects of its own upon which P&O could rely. Again, the Advocate General answered in the negative. As he explained, “unless expressly provided otherwise, litigants may not rely on the provisions of the TCA before national courts” (para. 54) and P&O “cannot rely directly…on the TCA” (para. 53). The TCA is an international agreement, and, as such, does not automatically confer rights on individuals or companies that they can enforce before EU courts unless the agreement explicitly and unequivocally does so. It does not:
- Article 5(1) TCA stipulates that, unless there is an exception provided in the agreement, “nothing in this Agreement…shall be construed as conferring rights or imposing obligations on persons other than those created between the Parties under public international law, nor as permitting this Agreement … to be directly invoked in the domestic legal systems of the Parties”.
- Nothing in Article 191 TCA provides any exception to the contrary of that default position.
Consequently, P&O could not, in Advocate General Biondi’s opinion, rely on the TCA directly before a Belgian court to challenge the fee regime. Instead, any incompatibility of the law of an EU member state and the TCA “would have to be resolved by means of the TCA’s own dispute settlement mechanism” (para. 54). Again, this appears obviously right on the basis of (a) the text of Article 191 itself (which also falls neither in the social security nor law enforcement and judicial cooperation parts of the TCA where direct effect is clearly afforded to certain provisions) and (b) consistency with the Opinion of Advocate General Szpunar in C-202/24 Alchaster EU:C:2024:559 at para. 56.
Indirect Effect of Article 191 TCA
That was not the end of the matter, however. In a fascinating series of remarks at paras. 55-59, Advocate General Biondi opines that EU member states nevertheless remain bound by their international obligations and, therefore, although the TCA lacks direct effect, national courts and authorities are still required to interpret national law “so far as possible” in a manner consistent with the TCA, including Article 191: paras 58, 59 and 60(2).
In practice, this means that if national law allows for a non-discriminatory interpretation that aligns with Article 191 TCA, the court should adopt that interpretation; however, where national law is clear and cannot reasonably be interpreted to conform with the TCA, the agreement cannot be used to disapply domestic law or to create enforceable rights.
This interpretive obligation stops well short of the direct effect enjoyed by EU internal market rules prior to Brexit. Nonetheless, it still places pressure on EU member states to avoid regulatory frameworks that appear, for example, openly discriminatory against UK operators or contrary to the TCA. While not equivalent to direct effect, this interpretative obligation therefore provides at least a partial bridge for post-Brexit access to the single market under rights found in the TCA. It does, however, mean that reliance on the TCA before EU member state courts (and the EU courts) will depend somewhat on national implementation and judicial interpretation, raising questions about legal certainty and consistency.
While AG Opinions are not binding, they often provide a strong indication of the Court’s direction of travel. It is well worth keeping an eye out for the CJEU’s ruling in due course.
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