This is the fourth in a series of blogposts on CJEU decisions concerning the UK-EU Withdrawal Agreement by Luke Kelly and Charlotte McLean of Monckton Chambers. In this post, they provide an overview of a selection of the Court’s decisions which address procedural issues arising from the Withdrawal Agreement.
The first and second decisions summarised below concern unsuccessful attempts to erect procedural and jurisdictional hurdles on the basis of the UK’s withdrawal from the EU. The third and fourth decisions concern the interpretation of Article 92 of the Withdrawal Agreement i.e. whether a procedure initiated before the end of the transition period is an “administrative procedure” concerning compliance by the UK or persons residing or established in the UK with EU law, regarding which EU institutions, bodies, offices and agencies remain competent.
These cases reflect the wide variety of procedural issues which may arise in litigation concerning the Withdrawal Agreement.
The CJEU’s preliminary reference decision of 9 October 2025, Case C-540/24 Cabris Investments Ltd v Revetas Capital Advisors LLP, concerned the interpretation of Article 25 of the Brussels Ia Regulation in the context of an exclusive jurisdiction clause. (Note that in Blog 3, we addressed a number of other decisions concerning jurisdiction challenges as part of our analysis of cases concerning judicial cooperation).
This decision was relevant to the Withdrawal Agreement insofar as the Court found that the Withdrawal Agreement did not make provision for the jurisdictional question which arose – and that Article 25(1) of Brussels Ia did apply.
The parties had entered into a contract in May 2020 with an exclusive jurisdiction clause in favour of the Commercial Court in Vienna. In June 2023, Cabris Investments brought proceedings in that Court for a sum of 360,000 EUR. Revetas challenged the jurisdiction of the Court on the basis that the Brussels Ia Regulation was not applicable to legal relationships involving the UK since the end of the transition period. They argued that the jurisdiction clause was inoperative and Article 25 of the Regulation was not applicable as the action had been brought after the end of the transition period.
The referring court suggested that Article 25 and the principles laid down in previous caselaw as to its interpretation may not apply in such circumstances, and that the contractual relationship underlying the dispute had no connection with Austria.
Article 25(1) of Brussels Regulation Ia sets out:
“If the parties, regardless of their domicile, have agreed that a court or the courts of a Member State are to have jurisdiction to settle any disputes which have arisen or which may arise in connection with a particular legal relationship, that court or those courts shall have jurisdiction, unless the agreement is null and void as to its substantive validity under the law of that Member State. Such jurisdiction shall be exclusive unless the parties have agreed otherwise.”
The CJEU considered whether a dispute between parties to a contract domiciled in the same third state which have designated a court of a Member State to hear and determine a dispute falls within the scope of the Brussels Ia Regulation and Article 25(1). It found that it did – choice of jurisdiction clauses take effect on the date of the judicial action and so must be assessed at the date legal proceedings are brought; Article 25(1) applies regardless of the domicile of the parties; the international element required to fall within the Regulation could result from an agreement conferring jurisdiction on Member States where parties are domiciled in a third state; and the objectives of the Regulation are to respect party autonomy, enhance exclusive jurisdiction clause effectiveness, and unify the rules on conflict of jurisdiction.
The Court also confirmed that Article 25(1) covers a situation in which two parties to a contract domiciled in the UK make an agreement during the transition period conferring jurisdiction on a Member State court, even if that court is seised of the dispute after the end of the transition period.
Whilst the majority of the Court’s analysis was concerned with the Brussels IaRegulation, this decision makes clear that the Withdrawal Agreement does not disturb the approach to assessing jurisdiction under Article 25(1). It is an example of parties seeking rather creatively to use the fact of the Withdrawal Agreement to question clear principles. The fact that the referring court felt it necessary to pose the question also suggests a lack of familiarity with, or a possible tendency to treat cases concerning the Withdrawal Agreement, with particular levels of caution.
A different procedural hurdle was raised – and swiftly dismissed – before the General Court in Case T-226/18 Global Silicones Council and Ors v European Commission.
This concerned a challenge to a regulation preventing certain chemical substances from being placed in wash-off cosmetic products above a certain percentage (Regulation 2018/35).
Whilst the substance of this case is not relevant to the Withdrawal Agreement, the applicants requested that the Court revoke the UK’s status as intervener given the UK had left the EU by the time of oral argument (29 September 2020). The Court rejected this argument. The UK had, until the date of delivery of the judgment, the right to intervene. Notably, its intervention was authorised in September 2018, when it was still a Member State.
Article 40 of the Statute of the CJEU states:
“Member States and institutions of the Union may intervene in cases before the Court of Justice.
The same right shall be open to the bodies, offices and agencies of the Union and to any other person which can establish an interest in the result of a case submitted to the Court. …”
During the transition period, the first paragraph of Article 40 continued to apply in accordance with Articles 127(1) and (6) of the Withdrawal Agreement, which state that Union law is applicable to the UK during the transition period unless otherwise provided in the Agreement. Therefore, the UK continued to enjoy intervener status.
The CJEU also rejected the applicants’ suggestion that a breach of the Withdrawal Agreement, if established, would prevent the UK from invoking the rights in the Agreement. There was no provision whereby parties automatically lose their rights under EU law and the Agreement in the event of a breach of its obligations.
This is another example of parties seeking to use the fact of the UK’s withdrawal from the EU in ambitious ways to erect procedural hurdles in litigation. The CJEU gave the argument short shrift, and stressed that in any event, following the end of the transition period, the UK could establish an interest in the result of the case under the second paragraph of Article 40, given that it was the UK’s competent authority which submitted the information to the European Chemicals Agency which eventually led to the adoption of the contested Regulation.
Turning to the Court’s analysis of Article 92 of the Withdrawal Agreement, the decision of the General Court dated 31 January 2024, Case T-56/22 United Kingdom v European Commission concerned an application by the UK for a partial annulment of a Commission decision concerning expenditure under the common agricultural policy.
The Commission had found in June 2018 that the control system implemented by the UK to verify the granting of aid by two EU agricultural funds was not in accordance with EU legislation. Discussions were ongoing between the UK and EU concerning corrective measures from 2019, with the Commission adopting the contested decision on 17 November 2021. That decision found that the UK had failed to take into account related companies when checking the status of an aid applicant under certain agricultural funds, and proposed a financial correction.
The Commission contested the admissibility of the challenge firstly on the basis that the UK was not represented by a lawyer authorised to practice before a court of a Member State or a member of the EEA.
The Court began its analysis by considering whether the procedure giving rise to the contested decision, called conformity clearance, fell within the scope of the administrative procedures concerning EU law covered by Article 92 of the Withdrawal Agreement. Article 92 provides that “the institutions, bodies, offices and agencies of the Union shall continue to be competent for administrative procedures which were initiated before the end of the transition period concerning: (a) compliance with Union law by the United Kingdom, or by natural or legal persons residing or established in the United Kingdom; or (b) compliance with Union law relating to competition in the United Kingdom”. Further, the Withdrawal Agreement provides for the UK to be represented by a UK lawyer in relation to cases concerning Article 92 (pursuant to Articles 91(2)-(3)).
The CJEU concluded that the conformity clearance procedure had the same characteristics as the Article 92 administrative procedure. The conformity procedure pursued the same objective, i.e. compliance by the UK with EU law, as it seeks to verify whether expenditure under the common agricultural policy has been incurred in conformity with EU law.
Article 92(1) also requires that the procedure be initiated before the end of the transition period – the conformity clearance procedure was initiated on 14 June 2018 when the Commission sent its findings to the UK, so well before the end of the transition period.
Therefore, the action could not be declared inadmissible on the basis that the UK was not represented by EU lawyers.
The Commission also asserted that whilst the UK had standing under Article 263 TFEU, it could not rely on point (c) in the second paragraph of Article 90 of the Withdrawal Agreement to establish standing, as that provision only applies in the context of preliminary rulings brought in relation to administrative procedures concerning EU law. The Court rejected this argument swiftly – Article 90 sets out that the UK may intervene or participate in the same way as a Member State in relation to cases referred to in Article 95(3). Read in conjunction with Article 95(1), that provision provides the EU with exclusive jurisdiction to rule on the legality of EU decisions after the end of the transition period in the context of administrative procedures concerning EU law addressed to the UK. The UK therefore had the right to participate in proceedings in the same way as a Member State.
The General Court came to the opposite conclusion concerning the application of Article 92 in its decision dated 15 February 2023, Case T-492/21 Aquind Ltd and Ors v European Agency for the Cooperation of Energy Regulators (ACER). In this case, Aquind, a UK company, sought to annul a decision of the Board of Appeal of the EU Agency for the Cooperation of Energy Regulators (ACER). The contested decision had rejected a request for an exemption from certain conditions for access to the network for cross border exchanges in electricity, in relation to an electrical interconnector between the UK and French transmission systems.
Aquind had previously successfully appealed the Board’s decision in proceedings lodged at the General Court on 14 December 2018 with judgment handed down on 18 November 2020. The Board reopened the appeal proceedings and held a hearing. On 4 June 2021, the Board declared that the appeal was inadmissible because, as a result of Brexit, it was no longer competent to make a decision on the request for an exemption.
The Court rejected Aquind’s argument that the Board of Appeal erred in law in finding it was no longer competent to rule on ACER’s decision following Brexit.
The Court began its analysis by observing that the obligation under Article 266 TFEU for a body such as the Board to take necessary measures to comply with a judgment annulling an act does not itself give the body competence to do so. In this case, the relevant measure required to comply with the 2020 judgment allowing Aquind’s first appeal could consist of a fresh review by the Board which did not repeat the errors identified therein. Given that Article 266 TFEU did not itself give the Board or ACER competence to take such a measure, the Court considered whether the relevant Regulations (2019/942 or 2019/943) did so, and concluded they did not.
The Court then considered whether the Withdrawal Agreement provided the Board with competence to reconsider ACER’s decision. The Court stated that, on its face, Article 92(1) grants competence only in certain administrative procedures that raise issues concerning compliance by the UK with EU law, which did not apply to the contested proceedings. In addition, the procedure in this case had not been included in the list of administrative procedures drawn up under Article 92(4).
Further, on 27 January 2021, the CRE (the French energy regulatory commission) and Ofgem announced they had decided to close the procedure for the request for an exemption for Aquind because the exemption regime no longer applied following Brexit.
The Court firmly rebutted the suggestion that Article 92 reflects any principle that ongoing procedures should not be interrupted by Brexit – “that provision constitutes, on the contrary, an exception to the general principle according to which EU law – and, therefore, the competence of EU bodies – no longer applied to the United Kingdom after its withdrawal from the European Union and from the legal order of the European Union.”
The Court also rejected the applicants’ arguments concerning the application of the TCA. Nothing in the TCA conferred competence on ACER or its Board of Appeal to rule on requests for an exemption.
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