In this post, Will Perry of Monckton Chambers provides a summary of the second Cambridge Law Faculty – Monckton Chambers EU Relations Law seminar.
In the second of a series of five webinars jointly organised by Monckton Chambers and the Centre for European Legal Studies at Cambridge University, four academic and practising lawyers considered the institutional framework for the interpretation, enforcement and dispute of EU Relations Law issues. The webinar was chaired by Christopher Vajda – former UK judge of the Court of Justice of the EU.A recording of the one-hour webinar is available here.
Enforcement and Dispute Resolution under the Withdrawal Agreement
Professor Takis Tridimas began by outlining how enforcement and dispute resolution matters are dealt with by the EU-UK Withdrawal Agreement. At the outset he highlighted the ‘sui generis’ nature of this framework, which he explained as deriving from an ‘inherent tension between international law and elements of European Union law‘ and the ‘residue of integration’ (i.e. the fact that the Agreement terminates an intense and longstanding legal relationship).
Professor Tridimas emphasised the varied nature of the mechanisms in place – noting at the outset that the Agreement provides for two important non-judicial mechanisms in the form of the EU-UK Joint Committee and the Independent Monitoring Authority for Citizens’ Rights.
Addressing the Withdrawal Agreement’s judicial mechanisms, Professor Tridimas drew attention to the different ways in which the Withdrawal Agreement recognises the CJEU’s jurisdiction, noting that this jurisdiction is stronger in some cases than others. For example, Article 160 of the Withdrawal Agreement, which grants the CJEU jurisdiction in relation to financial settlement issues, provides for a procedure almost identical to the EU’s Article 267 TFEU preliminary reference procedure; whereas Article 158 of the Agreement, which concerns jurisdiction in relation to citizens’ rights issues, is time-limited to 8 years from the end of the transition period and grants the domestic courts a discretion whether or not to refer a question to the CJEU.
Turning to the arbitration panel mechanisms provided for under Articles 167 to 181 of the Agreement, Professor Tridimas emphasised the strength of the procedures when compared to equivalents in WTO law; for example, stressing that disputes over appointments of arbitrators were likely to be less common in the Withdrawal Agreement context. He also drew attention to sui generis quirks of the arbitration panel – for example, its procedure for requesting a CJEU ruling on questions of EU law.
In conclusion, Professor Tridimas characterised the Withdrawal Agreement procedures as a ‘distinct, strong, multi-faceted system of enforcement’, which falls short of EU standards but exceeds most international law standards.
Enforcement and Dispute Resolution in the Future Relationship
Dr Lorand Bartels was tasked with considering features enforcement and dispute resolution features of a possible EU-UK Free Trade Agreement (‘FTA’). Noting at the outset that we currently do not know whether an FTA will be agreed and what it will contain, Dr Bartels went on to consider features from other EU FTAs.
Dr Bartels emphasised that any FTA would likely contain a forum selection clause. This would allow the EU or UK to rely on WTO dispute resolution procedures instead of any mechanism provided for the in the FTA itself. Given the similarity between WTO and EU FTA law, the WTO option would likely be available in a range of circumstances. Responding to an audience question at the end of the webinar, Dr Bartels said that the FTA dispute resolution would likely be preferred in areas which WTO law does not cover – for example, environmental standards. But that the advantages of the WTO route were the efficiency of its secretariat and the greater transparency of its procedures.
Dr Bartels then went on to consider specific features of EU FTAs which were likely to be incorporated into any FTA with the UK. First, as EU FTAs have not given rise to directly effective rights for a number of years, it is unlikely that individuals will be able to bring proceedings for FTA infringements. Second, it is unlikely that an EU-UK FTA will permit either party to impose a system of fines for infringements – only the ability of either party to retaliate to infringements by suspending their FTA obligations. Third, any FTA is likely to contain mechanisms via which the CJEU has the ability to rule on questions of EU law (for example, as is the case with the EU-Ukraine Association Agreement).
Interpreting and Departing from Retained EU Law Case Law
Dr Emily Hancox considered the ways in which UK courts are likely to interpret and depart from retained EU caselaw. She began by outlining the concept of retained caselaw under section 6 of the European Union (Withdrawal) Act 2018 (‘EU(WA)A 2018’). She stated that, in order to ensure legal continuity, Parliament has recognised the need not only to copy and paste EU law provisions into the domestic statute books, but also to preserve the way in which those provisions have been interpreted by the domestic courts and CJEU up until the end of the transition period.
Considering how retained EU case law is likely to be applied by domestic courts, Dr Hancox outlined issues which will likely start to arise from the start of next year. For example, where a retained EU law provision has been modified by section of EU(WA)A 2018, there may very well be questions about whether that modification is consistent or inconsistent with retained caselaw.
Another interesting and important issue is the extent to which domestic courts will follow the CJEU’s ‘teleological’ and ‘communautaire’ modes of reasoning when relying on retained CJEU judgments – for example, whether considerations such as the commitment to ‘ever closer union’ or the ‘integrity of the single market’ will be relevant to a domestic court’s analysis or will instead be jettisoned as alien or inappropriate.
Another issue to be resolved on a case by case basis is the extent to which the EU Charter will continue to apply indirectly in UK domestic law, despite not formally forming part of retained EU law. For example, Charter rights may continue to shape the UK’s laws through judgments reached on the basis of Charter rights or general principles which reflect those rights.
Dr Hancox finally considered the circumstances in which UK courts might depart from retained caselaw, explaining that retained domestic caselaw will have the same precedential status as before, but that the ability of the courts to depart from retained EU caselaw is currently subject to public consultation.
Domestic Enforcement and Dispute Resolution
Finally, Jack Williams, looked at two areas of possible disputes in the domestic courts: disputes arising over retained EU law and disputes regarding separation agreement law stemming from the Withdrawal Agreement and Northern Ireland Protocol. Jack’s slides can be viewed here.
In terms of retained EU law disputes, Jack highlighted three possible areas of dispute. The first was whether something constitutes retained EU law in the first place. For example, there might be disputes about whether an unimplemented or improperly implemented Directive gives rise to rights under section 4 of the EU(WA)A 2018 (for Jack’s blog on this subject, see here). Another example – which was also explored in Dr Hancox’s talk – is the extent to which specific retained EU caselaw is decided on the basis of the EU Charter alone, or also on the basis of other retained treaty provisions and general principles.
Jack then highlighted the inherent limits of seeking to rely on retained EU law and disputes about the effects of retained EU law. He noted, first, that retained EU law only has supremacy in relation to legislation enacted before the end of the transition period. Second, claimants will have no direct right of action for failure of public bodies to comply with general principles, but may be able to use interpretative principles to arrive at similar outcomes. And third, there are significant limits on the ability to bring Francovich damages claims after the end of the transition period.
Jack then turned to a potentially voluminous area of post-transition period disputes: challenges to the validity of regulations made under section 8 of the EU(WA)A 2018 to modify retained EU law. Challenges to use of the section 8 power might be brought on vires grounds – and, in this regard, the domestic courts are likely to construe powers in a narrow fashion (e.g. see R (Public Law Project) v Lord Chancellor [2016] UKSC 39). Use of the power might also be challenged on traditional public law grounds.
In terms of Withdrawal Agreement and Northern Ireland Protocol disputes, Jackexplained that, by virtue of various ‘conduit pipes’ in the EU(WA)A 2018 and EU(Withdrawal Agreement) Act 2020, Article 4 of the Withdrawal Agreement providing for the Agreement’s direct effect has been implemented into domestic law. He also set out the circumstances in which preliminary references to the CJEU will continue to be made, namely regarding citizens’ rights, the NI protocol and the protocol on sovereign base areas.
A final word on the continued relevance of EU law
As part of an interesting Q&A session, Christopher Vadja was asked whether students should in the future continue to study EU law. His response was a categorical ‘yes’. First, EU law will clearly continue to play a key role in the UK’s ongoing dealings with the EU, underpinning many substantive provisions in the Withdrawal Agreement for example. Second, EU law will continue to serve as a valuable inspiration to domestic courts in the same way that European Court of Human Rights jurisprudence does. And third, unlike in 1972 where UK began a process of convergence with EU law, the UK is now departing the EU from a position of total convergence. In this final respect, Christopher Vajda gave the examples of UK competition and public procurement law, which he said are likely to be heavily influenced by CJEU decisions for years to come.
What’s up next?
The next webinar, on 25 November 2020, will focus on the UK’s internal market. Details of how to register are available here.
Full details of the entire Cambridge-Monckton webinar programme (and registration forms) are also available here.
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