Analysis 3 of the updated Brexit Withdrawal Agreement focuses on dispute resolution.

Professor Steve Peers, University of Essex

Introduction

This post examines the dispute settlement mechanisms outlined in the revised Brexit withdrawal agreement, specifically addressing the role of the Court of Justice of the European Union (CJEU). It is part of a series analyzing the updated agreement, which includes a revised Protocol on the Irish border and a revised political declaration on the future relationship. Previous posts have provided an overview of the agreement and examined the transition period. This post is an update of a previous analysis of the earlier withdrawal agreement.

The continued jurisdiction of the CJEU regarding the UK has been a point of contention. This post will provide a general overview of the issue, followed by a detailed analysis of the withdrawal agreement’s provisions concerning dispute settlement and the CJEU.

Background: CJEU and WTO dispute settlement

The withdrawal agreement’s drafters drew inspiration from existing CJEU jurisdiction and the World Trade Organisation (WTO) dispute settlement rules. To aid understanding, this post will explain both systems.

The CJEU’s primary jurisdiction, outlined in Article 267 TFEU, pertains to preliminary rulings, where national courts seek clarification from the CJEU on the interpretation or validity of EU law. A relevant example is the Wightman case, which examined the reversibility of the Article 50 notification. In this instance, a Scottish court referred questions about Article 50 to the CJEU for a preliminary ruling before proceeding based on the CJEU’s interpretation.

The CJEU also holds jurisdiction over direct challenges to the legality of actions taken by EU institutions or other bodies, as per Article 263 TFEU. An example is the Shindler case, where UK citizens residing in EU27 countries contested the EU Council’s decision to initiate negotiations for the withdrawal agreement. Lastly, the CJEU possesses jurisdiction over infringement actions, typically brought by the EU Commission, against Member States accused of violating EU law, as outlined in Article 258 TFEU. These actions can lead to fines for non-compliance with previous rulings under Article 260 TFEU.

The WTO’s dispute settlement rules enable any WTO Member to file a complaint against another for alleged violations of WTO rules. Such complaints are brought before a panel of trade experts, whose findings can be appealed to the WTO’s Appellate Body.

If a WTO Member is found in breach, they are granted a “reasonable period of time” to align their laws with WTO obligations. Disputes regarding this “reasonable period” can be resolved through arbitration. If the losing Member successfully complies, the matter is settled. Otherwise, they can negotiate alternative compensation with the winning Member.

Should this fail, the winning Member can impose trade sanctions proportionate to their losses due to the breach. Disputes over the equivalence of such retaliation can also be arbitrated. Similarly, disagreements regarding the losing Member’s compliance are often resolved through arbitration.

Overview

It is crucial to understand that most UK obligations under the withdrawal agreement terminate at the end of the transition period, scheduled for the end of 2020, with a possible extension of one or two years. Post-transition, the UK’s primary obligations relate to: (a) finalizing pending cases and proceedings; (b) safeguarding acquired rights of EU27 citizens residing in the UK before the transition period’s end (reciprocal provisions exist for UK citizens in the EU27); (c) adhering to the Northern Ireland protocol; and (d) fulfilling remaining financial settlement obligations.

The agreement maintains that EU law principles of “direct effect” and “supremacy” remain applicable as long as the UK is bound by EU law, primarily during the transition period. Additionally, the UK is obligated to respect CJEU judgments issued before the transition period ends. Judgments delivered afterwards require the UK to only “take due regard”.

During the transition period, the CJEU’s standard jurisdiction applies to the UK. Afterwards, the withdrawal agreement outlines the CJEU’s jurisdiction over pending cases at the transition period’s end and cases concerning events occurring before that point.

The CJEU retains special jurisdiction over citizens’ rights for eight years post-transition, disputes regarding EU budget legislation, and cases involving aspects of the Irish border protocol and the entire UK army bases in Cyprus protocol.

The heart of the withdrawal agreement’s dispute resolution system is an arbitration process for disputes unresolved through dialogue. This process mirrors the WTO dispute settlement rules, but with the crucial distinction that the CJEU may be involved where EU law is concerned. This is because, according to established CJEU case law, only the EU courts possess the authority to provide a binding interpretation of EU law for EU institutions or Member States.

Contrary to some claims, this does not grant the CJEU unlimited power to settle all disputes arising from the agreement; its jurisdiction is strictly limited to EU law matters. However, due to the agreement’s nature, it’s plausible that many disputes will involve interpreting EU law.

Importantly, there are differing start and end dates for these provisions. A timeline summarizing the timeframe for each dispute settlement rule and the applicable CJEU jurisdiction is provided below.

Comments

Those opposed to the CJEU might be disappointed as the agreement does not immediately eliminate its jurisdiction over the UK. However, as stated earlier, most of the CJEU’s jurisdiction ceases at the end of the transition period. Its remaining role mainly involves: (a) ongoing proceedings and cases; (b) specific areas like citizens’ rights, EU budget legislation, parts of the Irish border protocol, and the Cyprus protocol; and (c) a potential role in the arbitration process.

Even this limited jurisdiction will diminish over time. The CJEU’s jurisdiction over citizens’ rights ends eight years after the transition period, pending cases and budget legislation issues will naturally resolve, and a future treaty might replace the Irish border protocol. Moreover, it is important to note that not all of this jurisdiction directly affects UK courts or involves overturning UK law, which is a sensitive topic for some.

Specifically, while the CJEU has a role in certain arbitration cases, the overall arbitration process operates under general international law, not EU law. Furthermore, it is important to note that the UK government successfully negotiated amendments to the Commission’s initial dispute settlement proposal, including: substituting the CJEU with arbitration wherever legally feasible; restricting the CJEU’s jurisdiction over pending cases; and preventing special CJEU jurisdiction concerning the “separation provisions” in the agreement (i.e., handling European Arrest Warrants issued by or against the UK not executed by the transition period’s end).

Like other aspects of the withdrawal agreement, the CJEU’s role is a complex compromise. While EU links remain largely unchanged during the transition period, they are significantly curtailed afterwards, and this detachment will continue to grow over time.

Time Frame

  • During transition period (end of 2020, possibly extended): Regular CJEU jurisdiction (Article 131)

  • Pending cases at the end of the transition: All case types reaching the CJEU beforehand (Article 86)

  • New cases post-transition:

  • a) Infringement proceedings (four-year limit) if the UK allegedly breached EU law before the transition period ended, failed to enforce a ruling in an EU administrative proceeding pending before the transition period’s end, or for issues arising before but decided after the transition period (Article 87)

  • b) Annulment actions: Challenges to administrative decisions concerning proceedings ongoing before the transition period ended, or issues originating before but decided after the transition period (Article 95(3))

  • c) EU27 citizens’ rights: Preliminary rulings (eight-year limit, starting at the transition period’s end) from UK courts (Article 158)

  • d) Financial settlement: Preliminary rulings and infringement proceedings (indefinite) related to EU budget legislation (Article 160)

  • e) References from the arbitration panel (indefinite) (Article 174)

  • f) Northern Ireland protocol (Article 12(4)), full jurisdiction over certain parts (unless replaced)

  • g) Cyprus bases protocol (Article 12), full jurisdiction (indefinite)

  • Impact of CJEU judgments:

  • a) Compliance with CJEU rulings on relevant EU law before the transition period’s end (Article 4(4))

  • b) Due regard for CJEU rulings on the agreement after the transition period ends (Article 4(5))

  • c) Continued compliance with CJEU rulings under the Northern Ireland protocol (Article 15 of the protocol), until replaced

Barnard & Peers: chapter 10, chapter 27

Photo credit: http://blog.mslgroup.com/eu-us-personal-data-transfer-after-the-european-court-ruling/

Annotation

CJEU and Dispute Settlement Provisions within the Withdrawal Agreement

PART ONE

COMMON PROVISIONS

ARTICLE 4

Methods and Principles for the Effect, Implementation, and Application of this Agreement

1. The provisions of this Agreement and applicable Union law incorporated by this Agreement shall have the same legal effect in the United Kingdom as within the EU and its Member States. Consequently, legal and natural persons can directly rely upon provisions within or referenced by this Agreement that fulfill the criteria for direct effect under EU law.

2. The UK shall ensure compliance with paragraph 1, including empowering its judicial and administrative bodies to disapply conflicting or incompatible domestic provisions through domestic primary legislation.

3. Provisions of this Agreement referring to Union law, concepts, or provisions shall be interpreted and applied following the methods and general principles of Union law.

4. Provisions in this Agreement referencing Union law, concepts, or provisions shall be interpreted in accordance with relevant case law from the CJEU issued before the transition period’s end during their implementation and application.

5. The UK’s judicial and administrative authorities shall duly regard relevant CJEU case law issued after the transition period’s end when interpreting and applying this Agreement.

Comments: Article 4 itself doesn’t confer jurisdiction to the CJEU. However, it addresses the legal impact of the agreement, applicable EU law, and the influence of CJEU case law. Its practical significance will decrease, especially after the transition period concludes and UK obligations under the agreement are significantly reduced.

Article 4(1) preserves the EU law principle of “direct effect” concerning the agreement and incorporated EU law. (Note: “Union law” is defined in Articles 2(a) and 6).

Article 4(2) reflects the principle of EU law supremacy, meaning national measures contradicting the withdrawal agreement must be disregarded by courts. Due to its reference to Article 4(1), this applies to both the agreement and incorporated EU law.

Article 4(3) is a general provision, elaborated by the subsequent paragraphs, concerning the interpretation of EU law mentioned in the agreement, ensuring consistency with EU law principles. (Note: “Union law” is defined in Articles 2(a) and 6).

Article 4(4) establishes that CJEU case law, up to the transition period’s end, concerning EU law cited in the agreement is binding for the UK. (Note: “Union law” is defined in Articles 2(a) and 6). Post-transition, this provision’s effect might be limited, except for Part Two (citizens’ rights), which extensively references EU law. This is because the scope of EU law binding the UK will be substantially reduced.

Article 4(5) mandates the UK to “duly regard” CJEU case law concerning the agreement issued post-transition. It differs from Article 4(4) regarding the obligation’s scope and the applicable law: the agreement itself, rather than referenced EU law.

Importantly, Article 13 of the Northern Ireland Protocol, even after the transition period, applies CJEU case law within its context, as an exception to Article 4. This also applies to the protocol on military bases in Cyprus, discussed later.

PART THREE

SEPARATION PROVISIONS

TITLE X

UNION JUDICIAL AND ADMINISTRATIVE PROCEDURES

CHAPTER 1

JUDICIAL PROCEDURES

ARTICLE 86

Pending Cases before the Court of Justice of the European Union

1. The CJEU retains jurisdiction over any proceedings involving the UK initiated before the transition period’s end. This encompasses all procedural stages, including appeals to the CJEU and cases referred back to the General Court.

2. The CJEU maintains its authority to issue preliminary rulings on requests submitted by UK courts and tribunals before the transition period’s end.

3. For this Chapter, proceedings are deemed initiated, and preliminary ruling requests are considered made, when the initiating document is registered by the CJEU or General Court registry.

Comments: This addresses cases concerning the UK pending before the CJEU at the transition period’s end. As the CJEU’s regular jurisdiction applies during the transition period, this provision, similar to other separation provisions, clarifies the handling of pending cases post-transition: they remain under the CJEU’s jurisdiction if initiated before the transition period’s end. Para 2 specifically addresses preliminary rulings requested by UK courts, while para 1 covers infringement actions against the UK and annulment actions brought by the UK.

ARTICLE 87

New Cases before the Court of Justice

1. Should the European Commission believe the UK failed to fulfill an obligation under the Treaties or Part Four of this Agreement before the transition period’s end, they can, within four years of the transition period’s end, bring the matter before the CJEU. This follows the requirements outlined in Article 258 TFEU or Article 108(2) TFEU, depending on the case, and the CJEU holds jurisdiction over such cases.

2. If the UK doesn’t comply with a decision mentioned in Article 95(1) of this Agreement or fails to incorporate a decision, as stated in that provision, directed at a natural or legal person residing or established in the UK, the European Commission, within four years from the decision’s date, can refer the matter to the CJEU. This follows the procedural requirements outlined in Article 258 TFEU or Article 108(2) TFEU, as applicable, and the CJEU holds jurisdiction over such cases.

3. When deciding to bring matters under this Article, the European Commission shall apply the same principles to the UK as to any Member State.

Comments: This provision allows for new cases post-transition under limited circumstances, requiring the dispute to be linked to events before the transition period’s end. Para 1 outlines this power concerning infringement proceedings or actions related to State aid (Article 108 TFEU), but with a four-year time limit from the transition period’s end. The inclusion of this time limit, and the reference to State aid proceedings, represent victories for the UK, as they weren’t present in the March 2018 draft.

The UK also achieved a favorable outcome regarding preliminary rulings. The March 2018 draft allowed cases concerning EU law pending in UK courts at the transition period’s end to be referred to the CJEU for a preliminary ruling post-transition. This provision has been removed entirely.

Para 2 addresses jurisdiction over infringement actions to enforce final decisions concerning EU administrative proceedings that were ongoing at the transition period’s end but where the decision was made afterwards. Again, a four-year deadline, absent in the initial draft, was added.

ARTICLE 88

Procedural Rules

EU law provisions governing procedures before the CJEU are applicable to the proceedings and preliminary ruling requests mentioned in this Title.

Comments: This ensures the Treaty and procedural rules governing CJEU proceedings apply to all legal actions outlined in this Title (Articles 86-91), explicitly mentioning Article 267 TFEU preliminary rulings.

ARTICLE 89

Binding Force and Enforceability of Judgments and Orders

1. CJEU judgments and orders issued before the transition period’s end, and those issued afterwards concerning proceedings mentioned in Articles 86 and 87, are entirely binding within the UK.

2. If, in a judgment referenced in paragraph 1, the CJEU determines the UK failed to fulfill a Treaty or Agreement obligation, the UK must take necessary measures to comply with that judgment.

3. Articles 280 and 299 TFEU apply in the UK concerning the enforcement of CJEU judgments and orders referenced in paragraph 1 of this Article.

Comment: This provision has been misinterpreted by some as granting the CJEU indefinite jurisdiction, which is not the case. It refers to other jurisdictions within the agreement: rulings during the transition period or rulings post-transition concerning cases pending at the transition period’s end (Article 86), or disputes originating during the transition period (Article 87). It’s a legal necessity, stemming from CJEU case law, that its judgments, within its jurisdiction, are binding.

Paragraph 2 mirrors Article 260(1) TFEU, mandating Member States to comply with CJEU judgments in infringement actions.

Article 280 TFEU simply states that CJEU judgments are enforceable under conditions outlined in Article 299 TFEU, which details how EU measures are enforceable under national law.

ARTICLE 90

Right to Intervene and Participate in the Procedure

Until CJEU judgments and orders concerning proceedings and preliminary ruling requests mentioned in Article 86 become final, the UK can intervene or participate similarly to a Member State, as outlined in Article 267 TFEU. During this period, the CJEU Registrar will notify the UK, alongside Member States, about any cases referred to the CJEU for a preliminary ruling by a Member State court or tribunal.

The UK can also intervene or participate similarly to a Member State:

(a) in cases concerning non-fulfillment of Treaty obligations, where the UK was bound by the same obligations before the transition period ended, and brought before the CJEU under Article 258 TFEU before the period mentioned in Article 87(1) ends, or until the final judgment or order is issued by the CJEU based on Article 87(1) after that period;

(b) in cases concerning EU law acts or provisions applicable in the UK before the transition period’s end, brought before the CJEU under Article 267 TFEU before the period mentioned in Article 87(1) ends, or until the final judgment or order is issued by the CJEU based on Article 87(1) after that period; and

(c) in cases mentioned in Article 95(3).

Comment: The UK retains the ability to intervene or participate in cases as a non-EU state, as allowed by Article 23 of the CJEU Statute if a treaty between the EU and a non-EU state permits it. This Article grants the UK a considerable timeframe for intervention, essentially until the CJEU delivers final judgments for all cases brought under Articles 86 or 87 of this agreement, or in cases involving challenges to EU administrative decisions affecting the UK (point (c)).

ARTICLE 91

Representation before the Court

1. Without prejudice to Article 88, lawyers authorized to practice in UK courts or tribunals who represented or assisted a party in proceedings before the CJEU, or related to preliminary ruling requests made before the transition period ended, can continue to do so. This right covers all procedural stages, including appeals to the CJEU and proceedings before the General Court after referral.

2. Without prejudice to Article 88, lawyers authorized to practice in UK courts or tribunals may represent or assist parties before the CJEU in cases outlined in Article 87 and Article 95(3). They may also represent or assist the UK in proceedings covered by Article 90 where the UK chooses to intervene or participate.

3. Lawyers authorized to practice in UK courts or tribunals representing or assisting a party before the CJEU in cases mentioned in paragraphs 1 and 2 shall be treated no differently than lawyers authorized to practice before courts or tribunals of Member States.

Comment: This provision safeguards the rights of UK lawyers to appear before the court in relevant cases.

CHAPTER 2

ADMINISTRATIVE PROCEDURES

ARTICLE 95

Binding Force and Enforceability of Decisions

1. Decisions made by EU institutions, bodies, offices, and agencies before the transition period’s end, or those made post-transition under procedures outlined in Articles 92 and 93 and addressed to the UK or individuals residing or established there, are binding within the UK.

2. Unless otherwise agreed upon by the European Commission and the designated UK competition authority, the European Commission maintains its competence to monitor and enforce commitments made or remedies imposed in the UK concerning proceedings related to Articles 101 or 102 TFEU. This includes proceedings conducted under Regulation (EC) No 1/2003 or Regulation (EC) No 139/2004 concerning the control of concentrations between undertakings. If agreed upon, the European Commission shall transfer the monitoring and enforcement of such commitments or remedies in the United Kingdom to the designated national competition authority of the United Kingdom.

3. The CJEU holds exclusive authority to review the legality of decisions mentioned in paragraph 1, in accordance with Article 263 TFEU.

4. Article 299 TFEU applies to the enforcement within the UK of decisions mentioned in paragraph 1 that impose financial obligations on individuals or entities residing or established there.

Comment: Articles 92 and 93 empower EU bodies to continue proceedings involving the UK if initiated before the transition period’s end (Article 92) or concerning pre-transition events, granting a four-year action window for EU institutions (Article 93). This covers areas like competition, State aid, mergers, financial services regulation, and anti-fraud measures. Paragraph 1 makes decisions based on these Articles binding. Challenges to these decisions, according to para 3, can be made through annulment actions under Article 263 TFEU.

Paragraph 2 grants the Commission continued power to oversee the application of competition or merger regulations, with the option to delegate this authority to the relevant UK agency.

Paragraph 4 addresses the enforceability of decisions. As previously mentioned, Article 299 TFEU details how these decisions are enforceable under national law.

Article 87(2) grants the CJEU jurisdiction over infringement actions if the UK fails to implement decisions under Article 95. Article 90(c) grants the UK intervention rights in legal challenges under Article 95(3).

PART FOUR

TRANSITION

ARTICLE 131

Supervision and Enforcement

During the transition period, EU institutions, bodies, offices, and agencies retain the powers granted to them by Union law concerning the UK and individuals or entities residing or established there. Specifically, the CJEU holds jurisdiction as outlined in the Treaties. This also applies to the interpretation and application of this Agreement.

Comments: _The CJEU’s regular jurisdiction applies to the UK during the transition period, which lasts until the end of 2020, unless extended by one or two years by a single decision (Article 132). Article 7 of the Agreement states that the UK will not have judges or Advocates-General on the EU courts during this period. Articles 86-91 address the handling of cases pending at the end of the transition period. _

PART SIX

INSTITUTIONAL AND FINAL PROVISIONS

TITLE I

CONSISTENT INTERPRETATION AND APPLICATION

ARTICLE 158

References to the Court of Justice of the European Union concerning Part Two

1. In cases commencing at first instance within eight years of the transition period’s end before a UK court or tribunal where a question arises concerning Part Two’s interpretation, and if the court or tribunal deems a decision on that question necessary for judgment, it may request a preliminary ruling from the CJEU. However, in cases where the subject matter before the UK court or tribunal concerns an application made under Article 18(1) or (4) or Article 19, a preliminary ruling request is permissible only if the case commenced at first instance within eight years from the date Article 19 applies.

2. The CJEU holds jurisdiction to issue preliminary rulings upon request, as per paragraph 1. The legal impact of such rulings in the UK mirrors that of preliminary rulings under Article 267 TFEU within the EU and its Member States.

3. Should the Joint Committee decide under Article 132(1), the eight-year timeframe mentioned in paragraph 1’s second subparagraph will be automatically extended by the corresponding number of months by which the transition period is extended.

Comments: The transition period is set to end at the end of 2020 unless extended by one or two years through a single decision. Para 3 clarifies that if the transition period is extended, the eight-year special jurisdiction of the CJEU will commence from the new end date. “Part Two” refers to citizens’ rights provisions, which apply only from the transition period’s end (see Article 185).

The CJEU’s jurisdiction is slightly narrower than under Article 267 TFEU: final courts in the UK aren’t obligated to refer cases under this Article, unlike under Article 267 TFEU. However, the legal effect of such rulings is the same: binding and overriding conflicting national law (see Article 4). Establishing non-binding CJEU jurisdiction wouldn’t be legally sound, as the CJEU has ruled that its judgments within its jurisdiction must be binding, even for non-EU states (see Opinion 1/91, para 38). It’s implicit that other CJEU jurisdictions, such as infringement proceedings, don’t apply in this instance.

This provision, and Title I of Part Six (Articles 158-163), apply only from the transition period’s end (Article 185). While this temporal limitation is explicitly stated in Article 158, it’s not repeated in Articles 159-163.

Since the CJEU’s jurisdiction explicitly applies as long as a case was initially brought before UK courts within the eight-year timeframe, it’s implicitly understood that it retains jurisdiction over cases pending at that period’s end, even if no ruling has been requested or issued (compare with Article 86).

It’s worth noting that there’s no time limit on the CJEU’s jurisdiction regarding this agreement’s application concerning UK citizens in the EU27, provided national courts in the EU27 request a ruling. There are also no other limitations on its jurisdiction related to UK citizens in the EU27 (i.e., final courts would generally be obligated to refer cases concerning them to the CJEU, and infringement proceedings may apply).

The UK’s notice on ‘no deal’ implications for EU27 citizens highlights that the CJEU would lack jurisdiction over EU27 citizens in the UK if the withdrawal agreement isn’t ratified. In such a scenario, fewer EU law rules would apply to UK citizens in the EU27.

ARTICLE 159

Monitoring the Implementation and Application of Part Two

1. Within the UK, an independent authority (“the Authority”) will monitor Part Two’s implementation and application. This Authority will have powers comparable to the European Commission under the Treaties to independently investigate alleged breaches of Part Two by UK administrative authorities. It will also receive and investigate complaints from EU citizens and their families concerning such breaches. The Authority can also bring legal action before a competent UK court or tribunal to seek an appropriate remedy following such complaints.

2. The European Commission and the Authority will each provide annual reports to the specialised Committee on citizens’ rights (Article 165(1)) on the implementation and application of Part Two within the EU and the UK, respectively. This information should cover measures taken to implement or comply with Part Two and details about complaints received.

3. No earlier than eight years after the transition period ends, the Joint Committee will assess the Authority’s operation. Following this assessment, it may decide, in good faith, under Article 164(4)(f) and Article 166, that the UK can dissolve the Authority.

Comments: The Authority will possess the power to: (a) receive complaints from EU citizens and their family members; (b) conduct independent investigations into alleged breaches by UK administrative authorities; and (c) initiate legal action in a competent UK court or tribunal to pursue suitable remedies if the administration’s response is deemed inadequate. It’s implicit that it cannot issue binding decisions on complaints directly.

The final draft removed text from the initial version that stated the Authority’s role doesn’t affect other remedies. However, such remedies remain available due to the explicit wording of the citizens’ rights provisions on remedies and Article 158. Also removed were provisions stating that the authority “may make its findings public,” “shall inform” the Commission about legal actions and “may consult” beforehand, and that the Commission could suggest legal actions for the authority.

Should the withdrawal agreement be ratified, the implementing UK Bill might provide more details about the Authority, such as independence guarantees, staffing, and funding. It might also need to address situations where the authority’s response to a complaint is unsatisfactory, or if there’s a delay in response. Are there remedies against the authority itself? Do its decisions require reasoning? Other questions include whether there will be time limits for filing complaints or for the authority to initiate legal proceedings. The authority doesn’t seem empowered to bring proceedings concerning general legal changes or to comment on them. It appears to have discretion regarding publicizing its proceedings. It’s unclear if the authority’s ability to initiate proceedings can directly benefit the complainant, and allowing the authority to submit observations to cases it hasn’t initiated, similar to Articles 161 and 162, would be beneficial.

Regarding substance, the definition of “family members” logically implies a connection to the definition outlined in Article 9, given the reference to Part Two. “Union citizens” are defined in Article 2, which applies to the entire agreement.

This provision applies from the transition period’s end (Article 185). This is problematic since, although Part Two won’t be applicable until then, the UK will be implementing a “settled status” scheme beforehand. EU27 nationals might require this body’s assistance sooner.

It’s unclear from the UK’s notice on “no deal” implications for EU27 citizens whether this Authority would be established in a no-deal scenario. While there wouldn’t be a legal obligation, the UK could unilaterally choose to do so.

ARTICLE 160

Jurisdiction of the Court of Justice of the European Union concerning certain provisions of Part Five

Without prejudice to Article 87 of this Agreement, Articles 258, 260, and 267 TFEU shall apply to the interpretation and application of applicable Union law referenced in Article 136 and Article 138(1) or (2). Any reference in Articles 258, 260, and 267 TFEU to a Member State shall include the United Kingdom.

Comment: This grants the CJEU jurisdiction over infringement actions and preliminary rulings for cases involving EU budget law references in Part Five (financial settlement). This jurisdiction will persist post-transition for payments made after that date but will diminish over time. Compared to earlier drafts, the continued jurisdiction over separation provisions (Part Three) was removed.

This provision takes effect from the transition period’s end (Article 185). Until then, the CJEU’s regular jurisdiction applies. Unlike Article 158, there’s no time limit on this Article’s jurisdiction, although it will become less significant over time.

The cross-reference to Article 87 covers cases brought within a limited timeframe post-transition, provided they relate to pre-transition events, over which the CJEU retains jurisdiction.

ARTICLE 161

Procedures before the Court of Justice of the European Union

1. When a Member State court or tribunal refers a question concerning this Agreement’s interpretation to the CJEU for a preliminary ruling, the referring court or tribunal’s decision, including the question, will be communicated to the UK.

2. EU law provisions governing procedures before the CJEU under Article 267 TFEU will apply, with necessary changes, to requests for CJEU rulings made under Article 158 of this Agreement. Similarly, these provisions will apply to proceedings before the CJEU and requests for preliminary rulings made in accordance with Article 160.

3. In cases brought before the CJEU under paragraph 1 and Articles 158 and 160 of this Agreement, and Article 12 of the Protocol on the Sovereign Base Areas:

(a) the UK can participate similarly to a Member State;

(b) lawyers authorized to practice in UK courts or tribunals can represent or assist any party in these proceedings before the CJEU and shall be

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