Human Rights and the EU-UK Trade and Cooperation Agreement
Introduction
The UK’s exit from the European Union (EU) did not affect its participation in the European Convention on Human Rights (ECHR). However, the relationship between human rights and EU law has changed for the UK. This blog post will explore the new connections between human rights and the Trade and Cooperation Agreement (TCA) now in effect between the EU and the UK.
The post will cover: (a) human rights conditions within the TCA framework, (b) human rights conditions related to criminal law cooperation within the TCA, (c) social rights protections in the TCA, (d) data protection considerations in the TCA, and (e) the role of EU courts. While the TCA allows for the potential disapplication of services rules for companies under sanctions, including those related to human rights (Article SERVIN.1.3), this post will not delve into that particular aspect (note: standard TCA dispute resolution mechanisms would apply to any disputes concerning such sanctions). This analysis has been updated (April 28, 2021) to reflect the final numbering of TCA Articles, while retaining the previous numbering for those familiar with it.
This blog post is the third in a series analyzing the TCA. It follows an overview of the TCA and an analysis of its social security provisions. Future posts will cover dispute resolution and environmental and climate change aspects.
It’s important to remember that the TCA is a separate agreement from the withdrawal agreement, which remains in effect between the UK and the EU. The rules for terminating or suspending the TCA differ significantly from those of the withdrawal agreement, particularly regarding human rights.
Summary
The TCA includes general rules on human rights, allowing for termination or partial suspension based on human rights concerns. However, this is not automatic and requires a high threshold to be met. Criminal law cooperation within the TCA features a specific fast-track termination option if the UK or an EU Member State withdraws from the ECHR or specific protocols, including those related to the death penalty. Suspension is also possible. Neither action is automatic. For social and labor rights, general rules may lead to a panel report but not retaliatory measures. A non-regression obligation exists, potentially allowing for retaliatory action, most likely in trade. The TCA includes a short transition period for data protection where the UK generally remains subject to EU law. After this, much depends on the UK obtaining a valid adequacy decision from the EU. Finally, EU courts may play a significant role in human rights disputes, particularly concerning data protection adequacy decisions. Existing case law allows for arguments that a non-EU country does not meet the standards required for an adequacy decision. EU courts could potentially be involved in other EU-UK human rights disputes.
Human Rights Conditionality in the TCA
The TCA’s ‘common provisions’ (Title II of Part Six) provide the foundation for human rights conditionality. This section begins with a dedicated article on human rights:
Article 763 (previously COMPROV.4): Democracy, rule of law and human rights
- The Parties shall continue to uphold the shared values and principles of democracy, the rule of law, and respect for human rights, which underpin their domestic and international policies. In that regard, the Parties reaffirm their respect for the Universal Declaration of Human Rights and the international human rights treaties to which they are parties.
While not specifically mentioning the ECHR, it is included as an international human rights treaty to which the UK is a party. Subsequent articles address climate change, weapons of mass destruction (WMDs), serious crime, counter-terrorism, data protection, and global cooperation. However, only the articles on human rights, climate change, and WMDs are designated as ’essential elements’ of the TCA and any supplemental agreements (Article 771, previously COMPROV.12).
Defining an issue as an ’essential element’ subjects it to a specific procedure (Title III of Part Six), potentially leading to expedited termination or partial or complete suspension of the entire agreement:
Article 772 (previously INST.35): Fulfilment of obligations described as essential elements
If either Party considers that there has been a serious and substantial failure by the other Party to fulfil any of the obligations that are described as essential elements in Article 771 (previously COMPROV.12 [Essential elements]), it may decide to terminate or suspend the operation of this Agreement or any supplementing agreement in whole or in part.
Before doing so, the Party invoking the application of this Article shall request that the Partnership Council meet immediately with a view to seeking a timely and mutually agreeable solution. If no mutually agreeable solution is found within 30 days from the date of the request to the Partnership Council, the Party may take the measures referred to in paragraph 1.
The measures referred to in paragraph 1 shall be in full respect of international law and shall be proportionate. Priority shall be given to the measures which least disturb the functioning of this Agreement and of any supplementing agreements.
The Parties consider that, for a situation to constitute a serious and substantial failure to fulfil any of the obligations described as essential elements in Article 771 (previously COMPROV.12 [Essential Elements]), its gravity and nature would have to be of an exceptional sort that threatens peace and security or that has international repercussions. For greater certainty, an act or omission which materially defeats the object and purpose of the Paris Agreement shall always be considered as a serious and substantial failure for the purposes of this Article.
Several points to consider: a) a ‘serious and substantial failure’ to fulfill obligations classified as an ‘essential element’ is required. This signifies a failure of exceptional gravity and nature, posing a threat to peace and security or having international repercussions; b) withdrawing from the ECHR or any other human rights treaty is not explicitly mentioned; c) suspension or termination is not automatic (a party ‘may’ choose to act); d) procedural requirements exist, including a minimum 30-day delay for discussions before taking action; e) a proportionality obligation exists, which might lead the complaining party to refrain from terminating the entire agreement.
Additionally, either party can terminate the entire treaty with twelve months’ notice, without providing justification or engaging in discussion (Article 779, previously FINPROV.8). Consequently, the ’essential elements’ clause should be viewed as a fast track to termination or suspension. Termination remains possible after a relatively short period if the fast-track termination threshold is not met. Similar clauses exist in other EU agreements with non-EU countries, and the EU is generally hesitant to invoke them.
Lastly, the provisions within Title II of Part Six are exempt from the dispute settlement process (Article 735(2)(h), previously INST.10(2)(h)). This means that the substantive definitions of ’essential elements’ cannot be subject to dispute settlement. However, Title III of Part Six, outlining the process for deciding on treaty suspension or termination, is not excluded from dispute settlement.
Human Rights Conditionality in Criminal Law Cooperation
Part Three of the TCA, dedicated to law enforcement cooperation, incorporates its own version of an ’essential elements’ clause (Article 524, previously LAW.GEN.3):
The cooperation provided for in this Part is based on the Parties’ and Member States’ longstanding respect for democracy, the rule of law and the protection of fundamental rights and freedoms of individuals, including as set out in the Universal Declaration of Human Rights and in the European Convention on Human Rights, and on the importance of giving effect to the rights and freedoms in that Convention domestically.
Nothing in this Part modifies the obligation to respect fundamental rights and legal principles as reflected, in particular, in the European Convention on Human Rights and, in the case of the Union and its Member States, in the Charter of Fundamental Rights of the European Union.
This article establishes that Part Three of the TCA is ‘based on…respect for’ human rights, including the ECHR, and emphasizes the ‘importance’ of implementing it domestically. Unlike the general provisions of the TCA, this section explicitly mentions the ECHR.
However, these provisions alone are insufficient. To understand the practical significance of human rights protection in the criminal law section, we must examine Part Three’s termination clause (Article 692, previously LAW.OTHER.136):
Without prejudice to Article 779 (previously FINPROV.8 [Termination]), each Party may at any moment terminate this Part by written notification through diplomatic channels. In that event, this Part shall cease to be in force on the first day of the ninth month following the date of notification.
However, if this Part is terminated on account of the United Kingdom or a Member State having denounced the European Convention on Human Rights or Protocols 1, 6 or 13 thereto, this Part shall cease to be in force as of the date that such denunciation becomes effective or, if the notification of its termination is made after that date, on the fifteenth day following such notification.
If either Party gives notice of termination under this Article, the Specialised Committee on Law Enforcement and Judicial Cooperation shall meet to decide what measures are needed to ensure that any cooperation initiated under this Part is concluded in an appropriate manner. In any event, with regard to all personal data obtained through cooperation under this Part before it ceases to be in force, the Parties shall ensure that the level of protection under which the personal data were transferred is maintained after the termination takes effect.
This clause grants either party the right to terminate Part Three specifically (preserving the rest of the treaty) with nine months’ notice. This differs from the twelve months’ notice required for terminating the entire treaty. As with the general TCA termination clause, terminating Part Three does not require specific grounds. However, unlike the general clause, the Part Three termination clause mandates discussions on concluding ongoing proceedings (para 3) and includes a safeguard for protecting previously transferred personal data. (Update, April 28, 2021: the EU institutions will release a statement declaring their intention to utilize this clause).
Furthermore, Part Three has its own version of the ’essential elements’ clause, enabling a fast-track termination (para 2). This clause terminates Part Three immediately upon the UK or an EU Member State’s withdrawal from the ECHR or one of three specific protocols (two of which concern abolishing the death penalty) taking effect. If denunciation has already occurred, termination takes effect fifteen days after notice is given.
Compared to the overall TCA’s ’essential elements’ clause, the Part Three fast-track termination clause: a) does not require a ‘serious and substantial failure’ or any other threshold beyond denouncing the ECHR or the specified protocols; b) termination is not automatic (a party ‘may’ choose to act: para 1); c) lacks procedural requirements for discussion, except for discussing the conclusion of ongoing proceedings (likely significantly impacted by ECHR or protocol denunciation); d) lacks a proportionality obligation; e) does not explicitly mention amending or abolishing domestic laws implementing the ECHR. However, invoking the general Part Three termination clause remains possible in such an event.
The criminal law section also includes a distinct clause on suspension, as opposed to termination. (Recall that the ’essential elements’ clause applicable to the entire TCA allows for either termination or suspension, in whole or in part). Article 693 (previously LAW.OTHER.137) outlines this provision:
In the event of serious and systemic deficiencies within one Party as regards the protection of fundamental rights or the principle of the rule of law, the other Party may suspend this Part or Titles thereof, by written notification through diplomatic channels. Such notification shall specify the serious and systemic deficiencies on which the suspension is based.
The Titles concerned by the suspension shall provisionally cease to apply on the first day of the third month following the date of the notification referred to in paragraph 1 or 2, unless, no later than two weeks before the expiry of that period, as extended, as the case may be, in accordance with point (d) of paragraph 7, the Party which notified the suspension gives written notification to the other Party, through diplomatic channels, of its withdrawal of the first notification or of a reduction in scope of the suspension. In the latter case, only the Titles referred to in the second notification shall provisionally cease to apply.
If one Party notifies the suspension of one or several Titles of this Part pursuant to paragraph 1 or 2, the other Party may suspend all of the remaining Titles, by written notification through diplomatic channels, with three months’ notice.
Upon the notification of a suspension pursuant to paragraph 1 or 2, the Partnership Council shall immediately be seized of the matter. The Partnership Council shall explore possible ways of allowing the Party that notified the suspension to postpone its entry into effect, to reduce its scope or to withdraw it. To that end, upon a recommendation of the Specialised Committee on Law Enforcement and Judicial Cooperation, the Partnership Council may: (a) agree on joint interpretations of provisions of this Part; (b) recommend any appropriate action to the Parties; (c) adopt appropriate adaptations to this Part which are necessary to address the reasons underlying the suspension, with a maximum validity of 12 months; and (d) extend the period referred to in paragraph 5 by up to three months.
If either Party gives notification of suspension under this Article, the Specialised Committee on Law Enforcement and Judicial Cooperation shall meet to decide what measures are needed to ensure that any cooperation initiated under this Part and affected by the notification is concluded in an appropriate manner. In any event, with regard to all personal data obtained through cooperation under this Part before the Titles concerned by the suspension provisionally cease to apply, the Parties shall ensure that the level of protection under which the personal data were transferred is maintained after the suspension takes effect.
The suspended Titles shall be reinstated on the first day of the month following the day on which the Party having notified the suspension pursuant to paragraph 1 or 2 has given written notification to the other Party, through diplomatic channels, of its intention to reinstate the suspended Titles. The Party having notified the suspension pursuant to paragraph 1 or 2 shall do so immediately after the serious and systemic deficiencies on the part of the other Party on which the suspension was based have ceased to exist.
Upon the notification of the intention to reinstate the suspended Titles in accordance with paragraph 9, the remaining Titles suspended pursuant to paragraph 6 shall be reinstated at the same time as the Titles suspended pursuant to paragraph 1 or 2.
Paragraphs 2 to 4 address data protection, discussed separately in a later section.
Key points: a) a threshold of ‘serious and systemic deficiencies’ exists, resembling but not identical to the general TCA ’essential elements’ clause; b) suspension is not automatic (a party ‘may’ choose to act: para 1); c) procedural requirements for discussion exist, including the possibility of temporarily amending Part Three or delaying the suspension; d) a requirement exists for discussing the conclusion of ongoing proceedings (likely significantly impacted by human rights concerns); e) a proportionality obligation is absent; f) explicitly amending or abolishing domestic laws implementing the ECHR is not mentioned, although such a development could trigger concerns about ‘serious and systemic deficiencies’; g) suspension takes approximately three months to take effect, slower than the general TCA ’essential elements’ clause; h) if one party suspends elements of Part Three, the other party can reciprocally suspend the remaining elements; i) provision exists to lift the suspension once the ‘serious and systemic deficiencies’ have been addressed.
Similar to the general ’essential elements’ clause, Part Three’s dispute settlement rules are somewhat contradictory, superseding the main dispute settlement rules and any other dispute settlement processes (Article 697, previously LAW.DS.3). However, these special rules do not apply to the suspension or termination clauses (Article 696, previously LAW.DS.2). Conversely, the substantive human rights grounds within Part Three (Article 524, previously LAW.GEN.3) are subject to dispute settlement. While the general ’essential elements’ clause presents a confusing situation (the process is subject to dispute settlement while the substantive clause is not), the Part Three dispute settlement process is perplexing for the opposite reason: the substantive clause is subject to dispute settlement, while the procedural clause is not.
Ultimately, applying the Part Three dispute settlement rules to the substantive human rights clauses results in a similar outcome: if the political Part Three dispute settlement process fails to reach a resolution, one party can suspend parts of Part Three, mirroring the procedure outlined in Article 693 (previously LAW.OTHER.137) (see Article 700, previously LAW.DS.6).
Finally, Part Three includes specific human rights provisions related to particular forms of law enforcement cooperation. For expedited extradition, Article 604(c) (previously LAW.SURR.84(c)) states that ‘if there are substantial grounds for believing that there is a real risk to the protection of the fundamental rights of the requested person, the executing judicial authority may require, as appropriate, additional guarantees as to the treatment of the requested person after the person’s surrender before it decides whether to execute the arrest warrant’. It’s important to note that this provision does not automatically constitute grounds for refusing extradition but allows for requesting additional guarantees.
For asset freezing and confiscation, Article 671 (previously LAW.CONFISC.16) states that ‘[w]here there are substantial grounds for believing that the execution of a freezing or confiscation order would entail a real risk for the protection of fundamental rights, the requested State shall, before it decides on the execution of the freezing or confiscation order, consult the requesting State and may require any necessary information to be provided.’ This mirrors the approach taken in the extradition clause.
Lastly, concerning Europol, Article 570 (previously LAW.EUROPOL.52(3)), addressing ‘restrictions on access to and further use of transferred personal data,’ stipulates (among other things) that ‘Each Party shall ensure, as far as possible, that’ information exchanged under the Europol Title was not ‘obtained in violation of human rights.’ It also states that ‘Nor shall such information be transferred if, to the extent reasonably foreseeable, it could be used to request, hand down or execute a death penalty or any form of cruel or inhuman treatment.’
These specific human rights exceptions are not exempt from the dispute settlement rules governing Part Three of the TCA.
Protection of Social Rights in the TCA
The protection of social rights within the TCA is twofold. Firstly, a ‘non-regression’ clause (Article 386, previously 6.1 of the ‘level playing field’ rules) safeguards existing employment law, encompassing ’labour and social levels of protection.’ This includes: ‘(a) fundamental rights at work,’ ‘(b) occupational health and safety standards,’ ‘(c) fair working conditions and employment standards,’ ‘(d) information and consultation rights at company level,’ and ‘(e) restructuring of undertakings.’ A footnote clarifies that this clause excludes social security and pensions. Article 386(2) further specifies that ‘“labour and social levels of protection” means labour and social levels of protection that are applicable to and in, and are common to, all Member States’ within the EU context.
The non-regression rule is defined in Article 387(2) (previously 6.2):
A Party shall not weaken or reduce, in a manner affecting trade or investment between the Parties, its labour and social levels of protection below the levels in place at the end of the transition period, including by failing to effectively enforce its law and standards.
Article 389 (previously 6.4) outlines a special dispute settlement rule to enforce the non-regression rule: Articles 408-410 (previously 9.1 to 9.3) of the level playing field provisions apply instead of the general dispute settlement rules. (More on these provisions later).
The second set of relevant rules is found in Chapter 8 of the level playing field provisions, focusing on ‘Other instruments for trade and sustainable development.’ ‘Sustainable development’ in this context extends beyond environmental law. According to Article 397(2) (previously 8.1(2)), this chapter aims to ’enhance the integration of sustainable development, notably its labour and environmental dimensions, in the Parties’ trade and investment relationship and in this respect to complement the commitments of the Parties under Chapter 6 [Labour and social standards] and Chapter 7 [Environment and climate].’ To achieve this, the parties ‘recall’ several instruments, including the International Labour Organization (ILO) Declaration on Social Justice for a Fair Globalization (Article 397(1), previously 8.1(1)).
Article 399 (previously 8.3), a key provision on labor standards in this chapter, explicitly mentions social rights:
The Parties affirm their commitment to promoting the development of international trade in a way that is conducive to decent work for all, as expressed in the 2008 ILO Declaration on Social Justice for a Fair Globalization.
In accordance with the ILO Constitution and the ILO Declaration on Fundamental Principles and Rights at Work and its Follow-up, adopted at Geneva on 18 June 1998 by the International Labour Conference at its 86th Session, each Party commits to respecting, promoting and effectively implementing the internationally recognised core labour standards, as defined in the fundamental ILO Conventions, which are: (a) freedom of association and the effective recognition of the right to collective bargaining; (b) the elimination of all forms of forced or compulsory labour; (c) the effective abolition of child labour; and (d) the elimination of discrimination in respect of employment and occupation.
Each Party shall make continued and sustained efforts to ratify the fundamental ILO Conventions if they have not yet done so.
The Parties shall exchange information, regularly and as appropriate, on the respective situations and progress of the Member States and of the United Kingdom with regard to the ratification of ILO Conventions or protocols classified as up-to-date by the ILO and of other relevant international instruments.
Each Party commits to implementing all the ILO Conventions that the United Kingdom and the Member States of the Union have respectively ratified and the different provisions of the European Social Charter that, as members of the Council of Europe, the Member States of the Union and the United Kingdom have respectively accepted.
Each Party shall continue to promote, through its laws and practices, the ILO Decent Work Agenda as set out in the 2008 ILO Declaration on Social Justice for a Fair Globalization (the “ILO Decent Work Agenda”) and in accordance with relevant ILO Conventions, and other international commitments, in particular with regard to: (a) decent working conditions for all, with regard to, inter alia, wages and earnings, working hours, maternity leave and other conditions of work; (b) health and safety at work, including the prevention of occupational injury or illness and compensation in cases of such injury or illness; and (c) non-discrimination in respect of working conditions, including for migrant workers.
Each Party shall protect and promote social dialogue on labour matters among workers and employers, and their respective organisations, and with relevant government authorities.
The Parties shall work together on trade-related aspects of labour policies and measures, including in multilateral fora, such as the ILO, as appropriate. Such cooperation may cover inter alia: (a) trade-related aspects of implementation of fundamental, priority and other up-to-date ILO Conventions; (b) trade-related aspects of the ILO Decent Work Agenda, including on the interlinkages between trade and full and productive employment, labour market adjustment, core labour standards, decent work in global supply chains, social protection and social inclusion, social dialogue and gender equality; (c) the impact of labour law and standards on trade and investment, or the impact of trade and investment law on labour; (d) dialogue and information-sharing on the labour provisions in the context of their respective trade agreements, and the implementation thereof; and (e) any other form of cooperation deemed appropriate.
The Parties shall consider any views provided by representatives of workers, employers, and civil society organisations when identifying areas of cooperation and when carrying out cooperative activities.
A footnote to para 5 clarifies the reference to the ILO Conventions and the Council of Europe Social Charter:
Each Party maintains its right to determine its priorities, policies and the allocation of resources in the effective implementation of the ILO Conventions and the relevant provisions of the European Social Charter in a manner consistent with its international commitments, including those under this Title. The Council of Europe, established in 1949, adopted the European Social Charter in 1961, which was revised in 1996. All Member States have ratified the European Social Charter in its original or revised version. For the United Kingdom, the reference to the European Social Charter in paragraph 5 refers to the original 1961 version.
But how is this (including the extensive environmental provisions alongside labor commitments) enforced? The main dispute settlement rules are again inapplicable. Instead, Articles 408 and 409 (previously 9.1 and 9.2) of the level playing field provisions apply, replacing the general rules (Article 407, previously 8.11). Note that unlike the non-regression rules, Article 410 (previously 9.3) does not apply. Let’s examine the practical implications of this.
Article 408 (previously 9.1) mandates consultation between the parties, potentially involving information from ILO bodies. If consultations fail, Article 409 (previously 9.2) provides for establishing a panel of experts, who should also seek guidance from ILO bodies (para 6). While the panel is tasked with delivering a report, Article 409(9) emphasizes the lack of enforcement power:
For greater certainty, the Parties share the understanding that if the Panel makes recommendations in its report, the responding Party does not need to follow these recommendations in ensuring conformity with the Agreement.
Furthermore, Article 409(19) applies specific parts of the dispute settlement rules to these panels, crucially excluding those dealing with remedies:
Except as otherwise provided for in this Article, Article 739(1) (ex INST.14(1) [Arbitration procedure]), Article 740 (ex INST.29 [Arbitration tribunal decisions and rulings]), and Articles 753 to 758 (INST.30 [Suspension and termination of the arbitration proceedings], Article INST.31 [Mutually agreed solution], Article INST.32 [Time periods], Article INST.34 [Costs], Article INST.15 [Establishment of an arbitration tribunal], or Article INST.28 [Replacement of arbitrators]) as well as Annexes 48 and 49 (previously ANNEX INST [Rules of Procedure for Dispute Settlement] and ANNEX INST-X [Code of Conduct for Arbitrators]), shall apply mutatis mutandis.
However, the panel process could exert political pressure, as a favorable panel report would benefit those arguing that the UK (or EU) is not upholding social rights.
More importantly, a key difference exists between disputes concerning sustainable development provisions (where the process concludes here) and non-regression disputes, where Article 410 (previously 9.3) also applies. Article 410 invokes the same panel of experts rules outlined in Article 409 but adds:
For the purposes of such disputes, in addition to the Articles listed in Article 409(19) (ex-9.2(19) [Panel of experts]), Articles 749 and 750 (ex-INST.24 [Temporary remedies] and Article INST.25 [Review of any measure taken to comply after the adoption of temporary remedies]) shall apply mutatis mutandis.
The Parties recognise that, where the responding Party chooses not to take any action to conform with the report of the panel of experts report and with this Agreement, any remedies authorised under Article 749 (ex-INST.24 [Temporary remedies]) continue to be available to the complaining Party.
What does this mean in practice? Article 749 states that: a) the losing party must offer compensation if requested by the winning party (para 1); b) the winning party can suspend parts of the TCA if it chooses not to request compensation or if compensation discussions fail (para 2); c) limitations exist on which provisions can be suspended (para 3); d) suspension must not exceed ’the level equivalent to the nullification or impairment caused by the violation’ (para 5); e) suspension can encompass any part of the treaty’s trade section (para 6); f) suspension can also apply to any other part of the treaty subject to the general dispute settlement rules if the complaining party deems it ’not practicable or effective to suspend obligations’ related to trade and considers the circumstances ‘serious enough’ (para 8, presumably still subject to the limitations in para 3); g) suspension takes effect 10 days after notification unless the losing party argues it is disproportionate or violates rules against cross-retaliation (para 10); h) this delays the suspension until arbitrators rule on the issue, within 30 days (para 11); i) suspension is temporary, lasting until a negotiated solution is reached, both parties agree that the losing party has fulfilled its obligations, or the losing party amends its law to comply (para 13).
What if the losing party claims compliance while the winning party disagrees? This scenario is addressed by referencing Article 750, which mandates that the losing party must inform the winning party of any compliance measures taken. The winning party must then cease retaliation within 30 days (para 1). If disagreement persists, the winning party can request the arbitration panel to rule on the matter within 46 days. Retaliation must cease if the panel deems the losing party compliant (para 2). Partial compliance is also possible, requiring a proportionate reduction in retaliation.
This analysis omits discussing the procedures for divergence following future developments in labor law (referred to as ‘rebalancing’ in the TCA, lacking explicit mention of human rights). Notably, this process is also subject to potential suspension of obligations, with specific arbitration rules and a higher threshold to demonstrate that divergence affects trade or investment (’material impacts on trade or investment…arising as a result of significant divergences’).
Data Protection Issues in the TCA
The TCA’s immediate approach to data protection involves a transitional period (termed a ‘specified period’) during which the UK generally remains subject to EU data protection law (Article 782, previously FINPROV.10A; note: this is excluded from dispute settlement rules). This period initially lasts four months, extendable to six months unless opposed, and can end earlier if the EU Commission adopts ‘adequacy decisions’ simplifying personal data transfers to the UK under the GDPR or law enforcement directive. This is contingent on the UK maintaining existing EU data protection law and refraining from certain legal changes (outlined in para 3) without EU consent. Breaching these terms terminates the transition period (para 5). The process for the EU to consent to amendments is further detailed.
Following this period, the data protection rules within the TCA’s criminal law section become relevant. Similar to the general provision on human rights and criminal law cooperation, Article 525 (previously LAW.GEN.4) states that such cooperation is ‘based on the Parties’ long-standing commitment to ensuring a high level of protection of personal data.’ Several fundamental data protection principles are outlined, but the enforcement mechanism is the suspension clause for the criminal law part, as discussed earlier. This clause states that if a data protection adequacy decision ceases to apply, or ‘in the event of serious and systemic deficiencies within one Party as regards the protection of personal data,’ suspending part or all of the TCA’s criminal law section is possible (Article 693(2), previously LAW.OTHER.137(2)). The rules governing the suspension of the criminal law part based on human rights concerns apply. (Update, April 28, 2021: the EU institutions will issue a declaration addressing this).
Specific provisions exist for suspending the exchange of passenger name records (Article LAW.PNR 38) on any grounds, not just those related to human rights or data protection. Article LAW.PRUM.19 outlines a specific suspension rule for DNA, vehicle, and fingerprint data exchanges, applicable only in cases of legislative divergence. The criminal law dispute settlement rules do not cover these suspensions.
The TCA does not appear to explicitly address the scenario where the Commission does not adopt an adequacy decision within the data protection transition period. (Update, April 28, 2021: the Commission has announced its intention to propose a draft adequacy decision).
Role of EU Courts
EU courts (and national courts of Member States) have long played a significant role in safeguarding human rights within the EU legal framework. What role would they play under the TCA?
First, they would lack direct jurisdiction concerning the UK. Disputes regarding TCA application within the UK fall under the jurisdiction of UK courts, except for those involving UK participation in EU funding programs. However, EU or Member State court rulings could indirectly affect the UK. For instance, a ruling barring extraditions to the UK due to human rights concerns would impact the UK. Similarly, UK court rulings applying the treaty could indirectly affect the EU or specific Member States.
Second, as mentioned earlier, human rights concerns within the TCA differ from those arising within EU law between Member States. Notably, Article 7 TEU, which outlines a largely political process for determining whether a Member State has seriously and persistently breached EU law (or risks doing so), is not applicable. While broadly comparable to Article 7 TEU, the TCA’s general rules on human rights conditionality are not identical.
What if the EU decided to terminate or suspend the TCA on general human rights grounds (invoking the ’essential elements’ clause)? Article 218(9) TFEU provides a starting point, enabling the Council to suspend treaties with non-EU countries based on a Commission proposal. The European Parliament has no role, and the Council implicitly votes by qualified majority, the default rule for Council voting. (Article 218(8) requires a unanimous Council vote when signing or concluding association agreements; however, this ‘procedure’ does not apply to para 9). Notably, no explicit rule exists for terminating a treaty.
Concerning the TCA’s specific human rights provisions, the Council decision on signing the TCA grants the Commission decision-making power for retaliation within the dispute settlement process, relevant to certain social rights disputes. The proposal to conclude the TCA includes the same rule. No specific rule exists for terminating or suspending the criminal law part of the treaty based on human rights concerns. Therefore, Article 218(9) TFEU likely applies, at least for suspension. For data protection, EU Commission adequacy decisions can be challenged through national courts referring questions about their validity to the CJEU, as seen in Schrems II.
This established route for challenging data protection adequacy decisions may be utilized again if the Commission adopts such a decision for the UK. However, it remains unclear how other decisions to suspend or terminate the TCA (or parts thereof) based on human rights grounds could be challenged. While the CJEU’s Racke judgment stated that national courts can refer questions to the CJEU about the validity of an EU treaty termination under international law, that judgment relied on the treaty conferring rights upon individuals, which is not the case with the TCA (except for social security and criminal law provisions on the EU side).
Challenging an implicit decision not to trigger suspension or termination may be even more difficult. This could depend on whether EU trade remedies law is amended to allow unions and environmental NGOs to request that the Commission initiate a dispute settlement process. If so, a refusal to do so could be challenged in EU courts. Issues may also arise if the EU decides to end a suspension or retaliatory measures.
National courts might start reaching their own conclusions about the UK’s human rights record (or conversely, UK courts about the EU or specific Member States). The option to request human rights safeguards in extradition proceedings, mentioned earlier, addresses this possibility to some extent. A broader question is whether the CJEU’s reluctance to suspend the European Arrest Warrant system based on human rights concerns pending an Article 7 decision against a Member State applies by analogy to the TCA. This is relevant because, as noted before, Article 7 does not apply to the TCA. Naturally, the constraints of Article 7 no longer apply to the UK either.
Barnard & Peers: chapter 27
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