maandag 26 november 2018, 13:00, dhr Prashant Sabharwal

Met de concept-deal tussen de EU en het Verenigd Koninkrijk die op tafel ligt lijkt de grande finale van het brexitspektakel eindelijk aangebroken. Hoe zit het eigenlijk met de juridische positie van het Verenigd Koninkrijk na de brexit?

They took practically all day – reading it, pondering it, reviewing it, evaluating it, judging it. In the end, the ministers of Prime Minister Theresa May’s government had been asked to make a momentous call: whether to agree to the final draft of the Withdrawal Agreement negotiated during the talks between the European Union (EU) and United Kingdom (UK) delegations, respectively led by Chief Negotiator Michel Barnier and Brexit Secretary Dominic Raab. Plenty of (tactical) leaks about the final shape of the agreement had been making the rounds in the past few days, with a breakthrough about as likely as a failure. Then the cabinet assembled – and, after a heated discussion primarily focused on whether the final draft would be able to pass through the House of Commons – the cabinet took what was termed a “collective decision”. However, if initial rumours are to be believed, the agreement announced by Prime Minister May on Wednesday evening was anything but unanimous.

The agreement itself still requires detailed study to grasp its full implications on a range of policy areas. That said, the 535-page text already reveals substantial outlines of the proposed UK-EU relationship after the United Kingdom’s proposed withdrawal on 30 March 2019, midnight (Brussels time). For ease of purpose and to illustrate the tall order that Prime Minister May and Mr Raab had to deal with, let us briefly examine the rules concerning the applicability of the jurisprudence of the Court of Justice of the European Union (CJEU).

Lofty Goals

Shortly after assuming office as Prime Minister, Mrs May, having followed her predecessor David Cameron – who had campaigned for remaining within the European Union – took her time developing an initial policy on Brexit. On 17 January 2017, in her Lancaster House speech, the Prime Minister made it clear that the continued influence of the CJEU would form one of her red lines for the upcoming negotiations with the EU:

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. Because we will not have truly left the European Union if we are not in control of our own laws”.

Following on from this speech, page 84 of the UK Government’s White Paper on “The Future Relationship between the United Kingdom and the European Union” outlined the principles that the British government now wished to see reflected in any future agreement with the EU in the following terms: “These arrangements should reflect that the UK will no longer be a member of the EU. The EU institutions, including the Court of Justice of the European Union (CJEU), will no longer have the power to make laws for the UK and the principles of direct effect and of the supremacy of EU law will no longer apply in the UK”.

Hence, bearing these yardsticks in mind, how has the UK Government done? After all, the role of the Court of Justice and the principle of primacy of European Union law played a central role in the Leave campaign’s argument in favour of withdrawal. A first analysis of the Draft Withdrawal Agreement reveals that despite the repeated public bravado displayed by both the UK Government, as well as nuisance influences like the European Research Group – an internal faction within the Conservative parliamentary party in the House of Commons, led by hardline pro-withdrawal MP Jacob Rees-Mogg – the agreement does certainly not conform to the Prime Minister’s objectives of “taking back control” from the judges in Luxembourg.

Luxembourg Prevails

For starters, there is Article 4(1) of the Draft Withdrawal Agreement (DWA), which mandates that the provisions of EU law “shall produce in respect of and in the United Kingdom the same legal effects as those which they produce within the Union and its Member States”. In this context, Article 4(1) also refers to the ability of individuals to rely on provisions under the doctrine of direct effect. Subsequently, Article 4(2) of the DWA obliges the UK to pass an Act of Parliament to ensure full compliance with the provisions of Article 4(1) by authorizing the courts to disapply inconsistent or incompatible legislation. In other words, one of the central provisions of the European Union (Withdrawal) Act 2018 – namely section 5(1), referring to the principle of supremacy of EU law (here: “primacy”) no longer applying – has essentially been rendered moot. Article 4(3) of the DWA mandates the interpretation of provisions of the agreement referring to Union law (including provisions), or derived concepts having to be interpreted in accordance with “the methods and general principles of Union law”. One such method includes the principle of purposive judicial interpretation which has been rather favoured by the Court of Justice to produce wide-ranging effects across Union jurisprudence.

Article 4(4) of the DWA then mandates that the provisions of the agreement shall be interpreted in compliance with CJEU jurisprudence until the end of the transition period. Further, Article 86(1) enables CJEU jurisdictions over any cases involving the UK until the end of the transition period (as of now: 31 December 2020). With Article 86(3) stipulating that submission to the Registrar of the Court of Justice serves as the date of service, and considering the typical length of preliminary rulings is 18-24 months, the Court of Justice may (at the very least) remain relevant to UK jurisprudence until the end of 2022 or the beginning of 2023. What is likely to incense the hard right within the Conservative Party, Article 87 confers upon the European Commission (a favourite bête-noire of the most vociferous and vitriolic advocates of withdrawal) the ability to bring infringement proceedings against the UK for violation of the Treaties or the transitional arrangements under Part 4 of the DWA before the Court of Justice – which has been given jurisdiction to adjudicate these matters.

For Now and Forever?

Read jointly with Articles 126 and, crucially, Article 132, this means that European Union law will continue to apply until 31 December 2020 at the very least – with that period being extendable once by decision of an EU/UK Joint Committee (established under Article 164 of the agreement, and responsible for its implementation). Additionally, Article 158(1) enables preliminary references on the issue of citizens rights to be brought before the Court of Justice by UK domestic courts and tribunals for a period of eight years, from the end of the transition period. Whilst it is also true that the DWA establishes an EU/UK arbitration panel, Article 174(1) envisages that any question relating to issues of EU law or the UK’s compliance with the provisions of the DWA shall be referred to the CJEU – whose ruling will be binding on the Arbitration Panel (whose own rulings, in turn, have also been given binding effect by Article 175 of the DWA).

The issue of citizen rights (i.e. primarily EU citizens residing in the UK, and vice versa; in the following, for ease of reference, the provisions are reviewed from the perspective of EU nationals in the UK, even though the DWA contains reciprocal stipulations for UK nationals in the EU27 as well) is set out in Part II of the DWA. In what will incense hardline advocates of withdrawal, the provisions on citizenship rights will apply to any EU citizens who move to the UK before the end of the transition period, as well as their family members provided they fulfil the conditions set out in Article 2 of Directive 2004/38/EC (“the Citizenship Directive”). Article 16 of the DWA then stipulates that those EU citizens (and their family members) who moved to the UK before the end of the transition period shall be able to acquire permanent residence in the UK even if they had not accumulated the minimum of 5 years’ residence prior to the end of the transition period. Paired with Article 23, namely the right of EU nationals permanently living in the UK to be employed or self-employed, this will constitute another red line crossed for extreme advocates of withdrawal. Additionally, according to Article 20 of the DWA, any restrictions imposed on the residency and entry of EU nationals will be governed by Chapter VI of the Citizenship Directive. The DWA also recognizes the judicial safeguards of Articles 30 and 31 of the Citizenship Directive as applying to EU nationals living in or moving to the UK. Subsequently, Article 158(2) clarifies that the legal effect of the CJEU’s preliminary rulings in the area of citizen rights in the UK shall be the exact same as in the remaining EU27 countries – namely binding on the signatories of the Withdrawal Agreement.

Only the Beginning

This was only a quick analysis of the judicial aspects of Brexit. Obviously, there is the Northern Irish backstop, fisheries and many other aspects worthy of analysis. But the stipulations on the Court of Justice demonstrate quite clearly that cheerleaders of a hard Brexit hopelessly overestimated their bargaining position – and desperately underestimated the quiet strength and (that’s worthy of a laudatory mention these days) the unity of the residual EU27 team led by Michel Barnier, and flanked by the Member State governments.

Given that the bright red lines articulated by the Prime Minister have been largely wiped away, can the DWA get through Parliament? If the reaction of the Eurosceptic right [1] [2] and the Northern Irish Democratic Unionist Party (on whom Mrs May depends on issues of parliamentary confidence and supply), it will be a tough act. The Labour Party’s Brexit spokesman, Keir Starmer, has decried the agreement as a “blinder than blind” deal – with pressure increasing on quietly Eurosceptic leader Jeremy Corbyn to get out of the way of the Labour Party formally endorsing a second national referendum in which “Remain” is to be one option. How realistic such a referendum is, given the tight 30 March 2019 deadline to ratify and withdraw (as well as a formal request that would have to emerge from the UK Government to extend the Article 50 period) is another matter altogether.

Despite talk of a no-confidence motion and subsequent leadership challenge, the Conservative Party has no one to replace Theresa May with. Even if it did have a plausible candidate who did not deter the general electorate, changing Prime Ministers in the middle of executing the country’s proposed withdrawal from the European Union and dissolving the institutional bonds that have tied the UK to the EU for 43 years would be a monumentally uncertain undertaking. The Brexit advocates have no plausible alternative plan that would avoid even more severe damage to the UK economy that the DWA may (to a limited extent) reduce. A second national referendum looks ever-more appealing, and may very well be the only avenue left. The question is simple: Does the hard right within the Conservative want to be in power or stand on its principles? It cannot conceivably do both. The endgame has certainly begun, despite the formal obstacles.