In this post, Alexandra Littlewood of Monckton Chambers explores the CJEU’s new jurisdiction to give preliminary rulings after the transition period.
As explained in a previous post, until the end of the transition period on 31 December 2020, the CJEU’s jurisdiction to give preliminary rulings will continue to apply in the ordinary way. When that jurisdiction comes to an end, other provisions of the Withdrawal Agreement (“WA”) will enter into force, creating new types of jurisdiction for the CJEU to give preliminary rulings.
These fall into two main areas: first, preliminary rulings in relation the interpretation of different parts of the WA, including citizens’ rights and the Protocol on Ireland / Northern Ireland (the “NI Protocol”), and, second, determination of disputes between the UK and the EU.
(1) Interpretation of the WA
Citizens’ rights
Part 2 of the WA contains the citizens’ rights provisions of the WA. It confers a range of rights on persons within its scope, such as rights of residence, and rights to work, receive social security rights, access services and have professional qualifications recognised. Those rights are explained in more detail in a previous post by Will Perry.
Under Article 158(1) WA, where a question is raised before a UK court concerning the interpretation of Part 2 WA and the court considers that a decision on the question is necessary to enable it to give judgment in the case, the court may request the CJEU to give a preliminary ruling on the question. The time limit for such a reference is that the case must have commenced at first instance within 8 years from the end of the transition period (at present, 31 December 2020).
Where the subject matter of the case before the UK courts is a decision on an application for new residence status under Articles 18 and 19 WA, the 8-year limitation instead begins to run from 31 January 2020. This is because, unlike the rest of Part 2, which applies from the end of the transition period, Article 19 applies from the entry into force of the Withdrawal Agreement (see Article 185). Such cases must therefore be commenced within 8 years of 31 January 2020.
The result of Article 158 is that questions about the interpretation of the citizens’ rights provisions in Part 2 WA can continue to be submitted to the CJEU until at least the end of 2028 – and likely for years after that, if a case is commenced before the end of 2028, but the case is appealed, and only a later appellate court considers that a reference should be made.
These provisions concerning the UK courts’ jurisdiction are given effect in UK law by section 7C of the Withdrawal Act (NB this also implements the section below on the Northern Ireland Protocol):
“(1) Any question as to the validity, meaning or effect of any relevant separation agreement law is to be decided, so far as they are applicable—
(a) in accordance with the withdrawal agreement, … and …
(2) See (among other things)—
(a) Article 4 of the withdrawal agreement (methods and principles relating to the effect, the implementation and the application of the agreement)…”
Article 158(2) WA addresses the CJEU’s ongoing jurisdiction to give preliminary rulings in references made under Article 158(1) WA. The legal effects in the UK of such preliminary rulings will be the same as the legal effects of preliminary rulings given pursuant to Article 267 TFEU in Member Status (i.e. binding on the court that made the reference).
In contrast with Article 267 TFEU, however, Article 158 WA does not require the Supreme Court (as the final court of appeal) to make a reference, even if the meaning of a provision of Part 2 is unclear. Instead, the Supreme Court (and any other court) “may” do so if it considers that a decision on that question is necessary to enable it to give judgment. It remains to be seen how this will play out in practice in terms of the willingness of the UK courts to make references after the transition period ends. Given that the ongoing jurisdiction of the CJEU after transition is, in some circles at least, politically controversial, it is possible that UK courts will take a restrained approach to making Article 158 references and will instead seek, as far as possible, to resolve the issue of interpretation themselves.
Article 161(2) WA provides that the same procedures that apply in preliminary references under Article 267 apply in relation to request for a ruling under Article 158. Article 161(3) gives the UK the right to participate in proceedings before the CJEU in cases brought under Article 158 WA and UK-qualified lawyers are entitled to appear in those proceedings.
Finally, it is worth noting that the courts of other Member States will continue to have the power or duty to refer questions concerning the interpretation of the WA to the CJEU under the ordinary Article 267 procedure. Where such a reference is made, the UK must be notified (Article 161(1). The UK courts will not be bound by these rulings, but they will have to have “due regard” to relevant post-transition CJEU caselaw (Article 4(5) WA and section 6(2) of the European Union (Withdrawal) Act 2018).
The NI Protocol
The NI Protocol, itself an “integral” part of the WA (see Article 182 WA), provides for the continued operation of certain areas of EU law in Northern Ireland after the end of the transition period. This includes EU law relating to customs and the movement of goods, technical regulations, VAT and excise, the Single Electricity Market and State aid. Save for a small number of provisions that are already in force (as listed in Article 185 WA), the NI Protocol will enter into force on 1 January 2021, unless a UK-EU Trade Agreement is reached before then.
As Brendan McGurk has explained in a previous post, the Protocol will confer full jurisdiction on the CJEU to oversee the operation of EU law that continues to apply in Northern Ireland after 1 January 2021. The CJEU’s jurisdiction is set out in Article 12(4) of the NI Protocol, which explains that “… the institutions, bodies, offices, and agencies of the Union shall in relation to the United Kingdom and natural and legal persons residing or established in the territory of the United Kingdom have the powers conferred upon them by Union law. In particular, the Court of Justice of the European Union shall have the jurisdiction provided for in the Treaties …The second and third paragraphs of Article 267 TFEU shall apply to and in the United Kingdom in this respect”.
Article 12(7) of the NI Protocol confirms that the UK will have the right to participate in any litigation before the CJEU, and UK lawyers may appear in those proceedings (as in the case of references concerning citizens’ rights, discussed above).
Given that Article 12(1) of the NI Protocol provides that the UK authorities are responsible for implementing and applying the provisions of EU law made applicable by the NI Protocol “to and in the United Kingdom” and Article 12(4) refers to the EU institutions’ powers “in relation to the United Kingdom and…persons residing or established in the territory of the United Kingdom”, it appears that preliminary references regarding the interpretation of the NI Protocol can be made by courts in other parts of the UK, as well as by courts in Northern Ireland. It would seem appropriate that a trader operating from England, Scotland or Wales who is aggrieved by the UK governments’ implementation of the Protocol should be able to commence proceedings in the courts of those countries and to seek a reference if any issue of interpretation arises (although this paper appears to suggest that only Northern Irish courts shall have the power to make such references).
Importantly, the incorporation of Article 267 TFEU into the NI Protocol means that, unlike the Article 158 WA procedure for citizens’ rights, a final court of appeal remains under a duty to refer a question on the NI Protocol where the criteria for making a reference are met. Given the large amounts of uncertainty surrounding the provisions of the NI Protocol, this area seems particularly ripe for future preliminary references.
There is no defined temporal limit on the UK courts’ power to makes references concerning the interpretation of the Protocol or on the CJEU’s jurisdiction to answer those questions. The jurisdiction will end only if an agreement is reached between the UK and the EU which supersedes the Protocol under Article 13(8) of the NI Protocol, or if the Northern Irish Assembly refuses to consent to the ongoing operation of the Protocol when it votes periodically on that issue under the procedure in Article 18 of the Protocol.
The financial settlement
Part 5 WA sets out the details of the UK’s financial settlement with the EU. Articles 138 and 138 set out certain provisions EU budget law that will continue to apply to the UK after the end of the transition period. Article 160 gives the CJEU jurisdiction to give preliminary rulings after the transition period in cases concerning the interpretation and application of those articles. There is no time limit on the CJEU’s jurisdiction to give preliminary rulings in relation to EU budget provisions, but as payments are phased out, its relevance will diminish over time.
Protocol on the Sovereign Base Areas in Cyprus
The Protocol on Sovereign Base Areas (“SBAs”) in Cyprus largely enables the continuity, from the end of the transition period, of existing agreements in and around the SBAs in Cyprus. The SBAs will remain in the EU customs territory and EU regulations on goods, including agricultural and fisheries laws will continue to apply. Article 12 of the Protocol provides that the CJEU will have jurisdiction in relation to the provisions of EU law in the Protocol, including the power to give preliminary rulings. Again, the UK may participate in such references and UK lawyers may appear before the CJEU in such cases (Article 161(3) WA). There is no time limit on this procedure.
(2) Dispute resolution between UK and EU
The CJEU gains one further form of jurisdiction under the WA after the transition period. Under Article 170 WA, if the UK and the EU disagree about the interpretation and application of the WA and they cannot resolve this dispute through consultation, an arbitration panel can be established to resolve the dispute in a binding manner. If this panel has to consider the meaning of a concept of EU law, under Article 174 WA it is obliged to ask the CJEU to offer a binding interpretation of that concept of EU law. The panel must then apply that interpretation to the dispute before it. The CJEU will not be involved in disputes that do not involve concepts of EU law, and will not decide on the dispute between the UK and the EU itself. There is no time limit on the CJEU’s jurisdiction to give rulings on references from the arbitration panel.
This is not a preliminary reference procedure in the usual sense: the reference does not originate from a national court, but from a specially constituted arbitration panel, and, rather than binding a national court as regards its interpretation of EU law, the obligation falls directly upon the UK government to “comply in good faith with the ruling of the arbitration panel”.
The procedure does, nevertheless, confer a similar interpretative role on the CJEU as in the usual preliminary reference procedure in that it is triggered where a dispute “raises a question of interpretation of a concept of Union law”. In addition, the same procedures apply as under the Article 267 TFEU preliminary reference procedure (Article 174(4) WA). As with the procedures discussed above, the UK may participate in such references and UK lawyers may appear before the CJEU (Article 174(4) WA).
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