The Withdrawal Method

There is no doubt about it, after Brexit Britain will not be subject to the rulings of the European Court of Justice, the EU’s high court. The Prime Minister has been absolutely clear about this, it’s a red line for her negotiators, they must not step over it. Red line-1 As she told fellow Conservatives at the Party Conference last autumn, “We are not leaving only to return to the jurisdiction of the European Court of Justice.” Her Secretary of State for Exiting the European Union, David Davis, has been just as forthright: “As I head to Brussels to open official talks to leave the EU, there should be no doubt — we are leaving the European Union, and delivering on that historic referendum result … Leaving gives us the opportunity to forge a bright new future for the UK — one where we are free to control our borders, pass our own laws and do what independent sovereign countries do.” May-Davis yawn They must be tired of saying it. Or perhaps they no longer mean it.

Of course the EU isn’t standing for any nonsense either, it’s absolutely essential in their view for the Luxembourg court to oversee vital aspects of any agreement (do they have red lines in Brussels?)

Since the EU published its “guidelines on Brexit negotiations” in April they have produced at least 15 documents under the heading “Negotiating documents on Article 50 negotiations with the United Kingdom”. Their sub-heading reads “Documents published as part of the European Commission’s approach to transparency on Article 50 negotiations with the United Kingdom”. We note in passing that the UK government has not, as far as we know, published anything that could be described as their approach to transparency. Transparency We are left to guess what the government regards as its “negotiating mandate”. Gloom abounds outside government circles – and possibly within. (We also note the irony that the cost of producing these documents was met in part by the UK’s contribution to the EU budget.)

In this post we review the EU’s thoughts (or should that be ‘mandates’) on Governance from the ‘Position paper transmitted to EU27 on Governance’ (29 June).

The attached position paper on Governance contains the main principles of the EU position in this regard …”.

This was to be discussed at the “Council Working party” on 29 June and, subject to confirmation, we assume that the contents were accepted without modification. We also assume that the contents are intended to supplement the ‘negotiating directives’ and so have similar status as part of the ‘mandate’.

Withdrawal-2Here is the opening paragraph, which sets the scene for the details that follow: 

The Withdrawal Agreement should establish institutional arrangements to ensure the effective management, implementation and enforcement of the Agreement. It should include appropriate dispute settlement mechanisms regarding the application and interpretation of the Withdrawal Agreement. The Withdrawal Agreement should respect the Union’s autonomy and its legal order, including the role of the Court of Justice of the European Union (hereafter ‘Court of Justice’) as regards in particular the interpretation and application of Union law.”

On the face of it this is entirely reasonable as a remit for the withdrawal agreement. However, we need to look more closely at the final sentence and their interpretation of (a) the role of the ECJ and (b) the purpose of the withdrawal agreement; these become clear in what follows, which starts with “General Principles”, among which we find:Citizen's rights-2

The provisions of the Withdrawal Agreement (i) on citizens’ rights, and (ii) enshrining the continued application of Union law should deploy, within the legal orders of the contracting parties, the same legal effects as those which Union law had deployed within the Union until the date of withdrawal. The United Kingdom should ensure compliance with the foregoing, including as regards the required powers of judicial and administrative authorities, through a legislative act.”

All rulings given by the Court of Justice pursuant to the provisions of the Withdrawal Agreement are binding on the Union and the United Kingdom, and are enforceable in the United Kingdom under the same conditions as those laid down in Article 299 TFEU.”

Negotiation-3We don’t believe that the use of legalistic language is inappropriate in this context or is intended to obscure the meaning for those of us who struggle to interpret it. From the first of these two paragraphs we see that the UK government is expected to introduce its own laws to ensure that the UK will continue to obey Union law. There is no room for negotiation here: “The provisions of the Withdrawal Agreement … enshrining the continued application of Union law…”

The second sentence states that the UK will continue to be bound by the Treaty on the Functioning of the European Union (TFEU). So what does ‘Brexit’ mean?

In any procedure before the Court of Justice relating to the application and the interpretation of the Withdrawal Agreement and touching upon the interests of the United Kingdom, the United Kingdom should enjoy the same procedural rights as the rights enjoyed by the Union Member States under the Statute and the Rules of Procedures of the Court of Justice.” Withdrawal-1

This is the last of six general principles and here we do see some irony, probably unintended, in the legalistic language: “…the United Kingdom should enjoy the same procedural rights…”. This is not an everyday use of “enjoy”. It refers to “rights” but it is clear throughout that this covers ‘duties’.

The Withdrawal Agreement should establish a Joint Committee” which, among other things, will decide “on the incorporation of future amendments to Union law in the Withdrawal 
Agreement where such incorporation is provided for in the Withdrawal Agreement.”

The general principles quoted above confirm that the continued application of Union law will be enshrined in the withdrawal agreement.

Next we turn to “Enforcement and Dispute Settlement”.

Dispute resolution-1The Withdrawal Agreement should provide that the Commission has full powers for the monitoring of the implementation of the provisions relating to citizens’ rights…”
and continued application of Union law. 

Disputes and divergences of interpretation may be discussed by the Joint Committee, which will be empowered to adopt solutions agreed between the EU and the UK. However, where the Joint Committee “is unable to reach a solution between the two parties, the matter may be referred to the Court of Justice…”.

From all this it is clear that the EU expects the UK to continue to function under the remit of the ECJ. So far the UK government has stated that it expects Brexit to remove the country from subservience to the ECJ. We will have to wait and see whether this ‘red line’ will fade and disappear under the pressure of the ‘negotiating mandate’ or whether the government will stand firm and the ‘negotiations’ will subsequently fail (see the second item in Anniversary Thoughts).


A spokesman for DEXEU said (30 June), “We are studying these technical papers in detail and look forward to discussing these issues, among others, at the next round of talks in July. We remain ready to engage with the Commission to discuss how we achieve a deep and special partnership with the European Union. We are clear that a phased process of implementation will be in the mutual interest of the UK and the EU. But we’ve also been clear that the direct jurisdiction of the ECJ in the UK must come to an end. The design of an implementation period will be addressed in the negotiations.” As we said at the start, it’s a red line. Red line-2ECJ rules-3

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