Resolving conflicts and the agreement for the UK's exit from the EU

Professor Steve Peers, University of Essex

Introduction

A key point of contention in the Brexit withdrawal agreement is how disputes will be settled. Specifically, there’s debate about whether the Court of Justice of the European Union (CJEU) maintains authority over the UK. This post provides an overview of this issue and a detailed analysis of the withdrawal agreement’s provisions concerning dispute resolution and the CJEU’s role.

This post is the third in a series examining the withdrawal agreement. The first two posts offered a general overview of the agreement and an analysis of the political declaration on the future UK/EU relationship. Future posts may address the Irish border backstop and legal aspects of additional declarations or decisions that might clarify the withdrawal agreement.

Previous drafts of the withdrawal agreement, particularly sections relating to citizens’ rights and the transition period, were also analyzed on this blog. These analyses remain largely relevant as the final agreement retained most of the original wording in these areas, with the exception of provisions allowing for a potential extension of the transition period by one or two years beyond 2020.

Earlier analysis also focused on dispute settlement and CJEU provisions within a prior draft of the agreement. While the final text differs significantly, some of the previous commentary remains applicable and has been adapted for this post.

Background: CJEU and WTO dispute settlement

The withdrawal agreement makes several references to the existing jurisdiction of the CJEU, and its dispute settlement mechanisms share similarities with those of the World Trade Organisation (WTO). For clarity, here’s a basic explanation of both systems.

The CJEU’s primary jurisdiction, outlined in Article 267 TFEU, pertains to preliminary rulings issued by national courts regarding the interpretation or validity of EU law. A recent example is the Wightman case, which questioned whether the Article 50 notification could be reversed. In this instance, a Scottish court sought guidance from the CJEU on Article 50 before proceeding with the case.

The Court also holds jurisdiction over direct challenges to the legitimacy of actions taken by EU institutions or other bodies (Article 263 TFEU). The Shindler case, where UK citizens residing in EU27 countries contested the EU Council’s decision to initiate negotiations for the withdrawal agreement, serves as an example. Lastly, the Court holds jurisdiction over infringement proceedings against Member States accused of violating EU law, typically brought by the EU Commission (Article 258 TFEU). Article 260 TFEU, which primarily deals with penalties for non-compliance with judgments concerning EU law infringements, is also relevant here.

Within the WTO framework, dispute settlement rules allow any member nation to lodge a complaint against another member for alleged violations of WTO regulations. These complaints are ultimately addressed by a panel of trade experts. Either party can appeal the panel’s findings to the WTO’s Appellate Body. However, the Appellate Body’s operations are currently hindered by US objections to certain WTO procedures.

If a WTO member is found to have breached regulations, it’s granted a “reasonable period of time” to align its laws with its WTO obligations. Arbitration can be used to resolve disagreements over what constitutes a “reasonable period of time”. If the non-compliant member rectifies the issue within the allocated timeframe, the matter is considered resolved. Otherwise, the involved parties can negotiate alternative compensation, such as tariff reductions on other goods.

Failing a negotiated agreement, the complaining member can retaliate through trade sanctions commensurate with the losses incurred due to the violation. Any disputes concerning the equivalence or excessiveness of these retaliatory measures can be settled through arbitration. Disagreements over whether the non-compliant member has adequately addressed the WTO ruling are also typically resolved through arbitration.

Overview

It’s crucial to understand that most of the UK’s obligations under the withdrawal agreement expire at the end of the transition period. Post-transition, the UK’s primary responsibilities pertain to: (a) concluding any pending legal cases and procedures; (b) safeguarding the acquired rights of EU27 citizens in the UK prior to the transition period’s end (with reciprocal provisions for UK citizens residing in EU27 states); and (c) adhering to the Irish border “backstop”. This “backstop” applies a customs union to the UK and specific rules concerning the free movement of goods to Northern Ireland until a replacement treaty is established.

The withdrawal agreement states that the EU law principles of “direct effect” and “supremacy” remain applicable as long as the UK is bound by EU law. Keep in mind that most of these obligations cease at the end of the transition period. The UK is also obligated to comply with any CJEU judgments delivered before the end of the transition period. For judgments issued afterward, the UK is only required to give them “due regard.”

During the transition period, the CJEU’s standard procedures apply to the UK. Afterward, the withdrawal agreement outlines the CJEU’s jurisdiction over pending cases at the time of the transition period’s end, as well as cases connected to events occurring before the end of the transition period.

The agreement also outlines specific areas of jurisdiction regarding citizens’ rights (for eight years post-transition), disputes concerning EU budget legislation, cases involving aspects of the Irish border protocol, and the entire protocol concerning UK military bases in Cyprus.

The withdrawal agreement’s dispute resolution system centers around an arbitration process for resolving disputes that cannot be addressed through dialogue. This process resembles the WTO dispute settlement procedures previously described. However, the CJEU may be involved in instances where EU law is implicated. This involvement was a non-negotiable point for the EU, as CJEU case law dictates that only EU courts can provide legally binding interpretations of EU law for EU institutions or Member States (see, for instance, Opinion 1/92).

It’s important to note that this does not grant the CJEU jurisdiction over the entirety of the withdrawal agreement, as some have erroneously asserted. Its authority is specifically limited to matters concerning EU law. However, given the nature of the agreement, it’s plausible that many disputed issues will pertain to the interpretation of EU law. Additionally, these dispute settlement rules are entirely inapplicable to a significant portion of the regulations related to labor law, environmental law, tax law, and competition law within the Irish border “backstop.”

It’s important to recognize that various provisions have different start and end dates. A timeline summarizing the commencement and termination of each dispute settlement rule, and the applicable CJEU jurisdiction, is provided below.

Comments

For those opposed to the CJEU, the withdrawal agreement may be unsatisfactory. The Court’s jurisdiction over the UK will not cease immediately. However, as mentioned earlier, most of this jurisdiction ends concurrently with the transition period. Post-transition, the CJEU’s role is limited to: (a) addressing pending legal proceedings or cases; (b) exercising specific jurisdiction (citizens’ rights, EU budget legislation, aspects of the Irish border protocol, and the Cyprus protocol); and (c) a potential role within the arbitration process.

Much of this jurisdiction will eventually be phased out. The CJEU’s jurisdiction over citizens’ rights has an eight-year limit, pending cases and budgetary legislation issues will naturally decrease over time, and the Irish border protocol is intended to be superseded. Additionally, not all of this jurisdiction directly impacts UK courts or the overturning of UK law - the most sensitive issue for some. This aspect might be what the UK government is referring to when it mentions ending the CJEU’s “direct jurisdiction” in the UK, although seeking clarification from the Prime Minister on this might prove fruitless.

Specifically, while the CJEU may play a role in certain arbitration cases, the overarching arbitration process is rooted in general international law, not EU law. In these instances, the Court of Justice is not responding to UK courts applying EU law. It’s also worth noting that the UK government successfully negotiated amendments to many of the dispute settlement provisions originally proposed by the Commission. These amendments include: replacing the CJEU with arbitration whenever legally feasible within the primary dispute resolution mechanisms, restricting the Court’s jurisdiction over pending cases, and denying the Court any special jurisdiction over the withdrawal agreement’s “separation provisions.” These “separation provisions” address the handling of European Arrest Warrants issued by the UK or EU27 for the apprehension and extradition of fugitives if these warrants remain unexecuted by the transition period’s end.

As with all aspects of the withdrawal agreement, the CJEU’s role reflects a complex compromise. Links to the EU remain essentially unaltered during the transition period but face significant limitations afterward. These limitations are then subject to further reduction over time. It’s plausible that the withdrawal agreement could result in dozens of additional CJEU judgments directly concerning the UK post-Brexit. Perhaps those who find this prospect so ideologically unacceptable that they would prefer leaving the EU without a deal, and accepting the resulting economic consequences, should consider offering compensation to fellow citizens adversely affected by their stance.

Time Frame

  • During transition period (end of 2020, with a possible extension): Ordinary jurisdiction of the CJEU (Article 131)
  • Pending cases at the end of the transition period: All types of cases already before the CJEU (Article 86)
  • New cases after the transition period:
    • a) Infringement proceedings (four-year time limit) alleging UK violations of EU law before the transition period’s end, failure to enforce a ruling in an EU administrative proceeding pending before the transition period’s end, or issues arising before the transition period’s end but decided afterward (Article 87)
    • b) Annulment actions: Challenges to administrative decisions concerning proceedings pending before the transition period’s end, or relating to issues arising before the transition period’s end but decided afterward (Article 95(3))
    • c) EU27 citizens’ rights: Preliminary rulings (eight-year time limit) from UK courts (Article 158)
    • d) Financial settlement: Preliminary rulings and infringement proceedings (indefinitely) relating to EU budget legislation (Article 160)
    • e) Reference from arbitration panel (indefinitely) (Article 174)
    • f) Northern Ireland protocol (Article 14(4)), full jurisdiction over specific parts of the protocol (until the protocol is replaced)
    • g) Cyprus bases protocol (Article 12), full jurisdiction over the protocol (indefinitely)
  • 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’s end (Article 4(5))
    • c) Continued compliance with CJEU rulings under the Northern Ireland protocol (Article 15 of the protocol), until the protocol is replaced

Barnard & Peers: chapter 10, chapter 27

Photo credit: Yabiladi.com

Annotation

CJEU and dispute settlement provisions in the Withdrawal Agreement

PART ONE

COMMON PROVISIONS

ARTICLE 4

Methods and principles relating to the effect, the implementation and the application of this Agreement

1. This Agreement and any applicable Union law it incorporates will have the same legal effect in the United Kingdom as within the EU and its Member States. This means individuals and entities can directly rely on provisions within, or referenced by, this Agreement, provided they meet the requirements for direct effect under Union law.

2. The UK is responsible for ensuring compliance with paragraph 1. This includes empowering its judicial and administrative authorities to override any conflicting domestic provisions through domestic primary legislation.

3. Any references within this Agreement to Union law, or its concepts and provisions, shall be interpreted and applied in accordance with the established methods and principles of Union law.

4. Any interpretation and application of provisions within this Agreement referencing Union law, or its concepts and provisions, shall adhere to the relevant case law established by the Court of Justice of the European Union prior to the end of the transition period.

5. When interpreting and applying this Agreement, judicial and administrative authorities in the UK shall give due regard to relevant case law from the Court of Justice of the European Union issued after the end of the transition period.

Comments: Article 4 doesn’t directly grant the CJEU any jurisdiction. Instead, it addresses the legal weight of the agreement, the EU law it references, and the implications of CJEU case law. Its practical relevance will decrease over time, especially after the transition period when the UK’s obligations under the Agreement are significantly reduced. As noted, the transition period is set to end in 2020 unless extended.

Article 4(1) maintains the EU law principle of “direct effect” – along with other principles concerning the legal effect of EU law – with respect to the agreement and any applicable EU law it incorporates. Note that “Union law” is defined for the agreement in Articles 2(a) and 6.

Article 4(2) reflects the principle of EU law supremacy. This means UK courts will be obligated to disregard any national measures that contradict the withdrawal agreement. Due to its link to Article 4(1), this applies to the agreement and any applicable EU law.

Article 4(3) is a general provision, elaborated upon in the following two paragraphs, about interpreting any referenced EU law in line with established EU law principles. Again, note that Articles 2(a) and 6 define “Union law.”

Article 4(4) mandates that the UK is bound by CJEU case law pertaining to the interpretation of any referenced EU law up to the end of the transition period. Articles 2(a) and 6 define “Union law.” It is unclear if this provision will hold much influence after the transition period – apart from Part Two on citizens’ rights which frequently references EU law – since the scope of EU law applicable to the UK will be significantly reduced.

Article 4(5) requires the UK to “give due regard” to any relevant CJEU case law pertaining to the agreement and issued after the transition period. It differs from Article 4(4) in both the degree of obligation and its subject: focusing on the agreement itself rather than any referenced EU law.

Note that Article 15 of the Protocol on Northern Ireland applies CJEU case law, even after the transition period ends, within the context of that Protocol. This constitutes a departure from Article 4. The same applies to the protocol on military bases in Cyprus, which will be addressed 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 Court of Justice of the European Union (CJEU) retains jurisdiction over any proceedings involving the UK initiated before the transition period ends. This jurisdiction covers all stages of legal proceedings, including appeals to the CJEU and cases referred back to the General Court.

2. The CJEU also retains jurisdiction to issue preliminary rulings on requests submitted by courts and tribunals in the UK before the transition period ends.

3. Proceedings are considered “brought before the CJEU,” and requests for preliminary rulings as “made,” at the moment the initiating document is officially registered by either the CJEU’s registry or the General Court’s registry.

Comments: This article addresses cases involving the UK already before the CJEU when the transition period ends. As previously mentioned, the CJEU’s normal jurisdiction applies during the transition period. This provision - like other separation provisions - clarifies the status of pending cases at the end of the transition period. These cases remain under the Court’s jurisdiction as long as they were initiated before the end of the transition period, as defined in paragraph 3. Paragraph 2 specifically includes preliminary rulings requested by UK courts, while paragraph 1 encompasses infringement actions against the UK and annulment actions initiated by the UK.

ARTICLE 87

New cases before the Court of Justice

1. The European Commission may bring a matter before the CJEU within four years of the transition period’s end if it believes the UK has failed to fulfill an obligation under the Treaties or Part Four of this Agreement before the end of the transition period. This will be done according to Article 258 TFEU or the second subparagraph of Article 108(2) TFEU. The CJEU holds jurisdiction over such cases.

2. Should the UK fail to comply with a decision outlined in Article 95(1), or neglect to give legal effect within its legal system to a decision, as detailed in the same provision, that was addressed to an individual or entity residing or established in the UK, the European Commission may refer the matter to the CJEU. This referral must occur within four years of the decision’s date and adhere to the procedural stipulations of Article 258 TFEU or the second subparagraph of Article 108(2) TFEU. The CJEU holds jurisdiction over such cases.

3. The European Commission will employ the same principles when deciding whether to bring cases under this Article against the UK as it would against any Member State.

Comments: This provision allows for new cases to be brought forward after the transition period ends, but only if the dispute originated before the transition period’s conclusion. Paragraph 1 outlines this authority in relation to infringement proceedings or State aid issues (Article 108). However, there’s a four-year time limit from the transition period’s end to initiate such cases. The addition of this time restriction, as well as the mention of State aid proceedings, represents a victory for the UK.

The UK also secured a victory concerning preliminary rulings. An earlier draft stipulated that cases concerning EU law and pending in UK courts at the end of the transition period could still be referred to the CJEU for a preliminary ruling. This possibility has been entirely removed.

Paragraph 2 addresses the CJEU’s jurisdiction over infringement actions seeking to enforce a final decision on an EU administrative proceeding that was underway when the transition period ended, but where the decision was issued afterward. This was relocated from another part of the earlier draft. Again, a four-year deadline has been added.

ARTICLE 88

Procedural rules

The provisions of Union law governing procedures before the CJEU shall apply to all proceedings and requests for preliminary rulings detailed 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). It explicitly mentions Article 267 TFEU preliminary rulings.

ARTICLE 89

Binding force and enforceability of judgments and orders

1. Judgments and orders issued by the Court of Justice of the European Union (CJEU) before the end of the transition period, as well as those issued after the transition period in proceedings outlined in Articles 86 and 87, are completely binding within the UK.

2. If the CJEU determines in a judgment, as referred to in paragraph 1, that the UK has failed to fulfill an obligation under the Treaties or this Agreement, the UK is obligated to take the necessary steps to comply with that judgment.

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

Comment: Some have misinterpreted this provision as granting the CJEU indefinite jurisdiction, but this is inaccurate. The provision exclusively references other areas of jurisdiction within the agreement: rulings issued during the transition period (discussed below), rulings issued after the transition period where the case was already underway when the transition period ended (Article 86), or rulings concerning disputes originating during the transition period (Article 87). As noted in the discussion of Article 158 below, it’s a legal requirement, derived from CJEU case law, that the Court’s judgments – within its jurisdiction – are always binding.

Paragraph 2 mirrors the language used in Article 260(1) TFEU, requiring Member States to comply with Court judgments resulting from infringement actions that determine a violation of EU law.

Article 280 TFEU simply states that CJEU judgments are enforceable under the conditions outlined in Article 299 TFEU. Article 299 TFEU then outlines how EU measures are to be enforced under national law.

ARTICLE 90

Right to intervene and participate in the procedure

Until all judgments and orders issued by the CJEU in proceedings and requests for preliminary rulings mentioned in Article 86 become final, the UK retains the right to intervene in the same way as a Member State. In cases brought before the CJEU under Article 267 TFEU, the UK can also participate in proceedings in the same capacity as a Member State. During this period, the CJEU Registrar will notify the UK, concurrently and in the same manner as Member States, of any case referred to the CJEU for a preliminary ruling by a court or tribunal of a Member State.

The United Kingdom can also intervene or participate in proceedings before the CJEU, under the same conditions as a Member State:

(a) in cases concerning failures to fulfill obligations under the Treaties, where the UK was subject to the same obligations before the end of the transition period, and where such cases are brought before the CJEU according to Article 258 TFEU before the end of the period outlined in Article 87(1), or, alternatively, until the last judgment or order issued by the CJEU based on Article 87(1) becomes final;

(b) in cases concerning acts or provisions of Union law applicable to the UK before the transition period’s end and brought before the CJEU under Article 267 TFEU before the end of the period outlined in Article 87(1), or, alternatively, until the last judgment or order issued by the CJEU based on Article 87(1) becomes final; and

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

Comment: The UK will be able to intervene or participate in cases as a non-EU state (see Article 23 of the CJEU Statute, which already permits this if a treaty between the EU and a non-EU state allows for it). This article grants the UK a considerable timeframe to intervene in such cases: essentially until all cases brought under Articles 86 or 87 of this agreement have been decided by the CJEU, or (point (c)) where a challenge to an EU administrative decision impacting the UK has been submitted.

ARTICLE 91

Representation before the Court

1. Without affecting Article 88, any lawyer authorized to practice law before UK courts or tribunals who represented or assisted a party in CJEU proceedings, or in relation to requests for preliminary rulings made before the transition period’s end, may continue to do so in those proceedings. This right extends to all stages of the proceedings, including appeals to the CJEU and cases referred back to the General Court.

2. Without affecting Article 88, lawyers authorized to practice law before UK courts or tribunals may represent or assist a party before the CJEU in the cases outlined in Article 87 and Article 95(3). Such lawyers may also represent or assist the UK in proceedings covered by Article 90 in which the UK has chosen to intervene or participate.

3. When representing or assisting a party before the CJEU in cases described in paragraphs 1 and 2, lawyers authorized to practice law before UK courts or tribunals shall be treated the same as lawyers authorized to practice law before the courts or tribunals of Member States representing or assisting a party before the CJEU.

Comment: This safeguards the right of UK lawyers to appear 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 ends, or those made under the procedures outlined in Articles 92 and 93 after the transition period ends, that are addressed to the UK or to individuals or legal entities residing or established in the UK, are binding within the UK.

2. Unless otherwise agreed upon by the European Commission and the UK’s designated national competition authority, the European Commission retains the authority to monitor and enforce commitments made, or remedies imposed, in or related to the UK concerning proceedings for the application of Articles 101 or 102 TFEU. This authority applies to proceedings conducted by the European Commission under Regulation (EC) No 1/2003 or Regulation (EC) No 139/2004 in relation to the control of mergers between undertakings. Should the European Commission and the UK’s designated national competition authority reach an agreement, the European Commission will transfer the responsibility of monitoring and enforcing such commitments or remedies within the UK to the UK’s designated national competition authority.

3. The legality of a decision referenced in paragraph 1 of this Article can only be reviewed by the CJEU, according to Article 263 TFEU.

4. Article 299 TFEU applies within the UK regarding the enforcement of decisions, as referred to in paragraph 1 of this Article, that impose financial obligations on individuals or legal entities residing or established in the UK.

Comment: Articles 92 and 93 of the agreement authorize EU bodies to continue proceedings related to the UK if they were initiated before the transition period ended (Article 92) or if they pertain to events occurring before the end of the transition period and fall within a four-year timeframe for action by EU institutions (Article 93). This applies to areas such as competition, state aid, mergers, financial services regulation, and anti-fraud measures. Paragraph 1 makes decisions based on these articles binding. According to paragraph 3, these decisions can be challenged based on the annulment action jurisdiction outlined in Article 263 TFEU.

Paragraph 2 grants the Commission ongoing authority to oversee the application of competition or merger legislation, though this authority can be transferred to the relevant UK agency.

Paragraph 4 addresses the enforceability of decisions. As previously mentioned, Article 299 TFEU specifies how such decisions are to be enforced under national law.

Article 87(2) grants the Court jurisdiction over infringement actions if the UK fails to enact decisions made pursuant to Article 95. Article 90(c) grants the UK rights of intervention in cases of 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 in relation to the UK, its residents, and established entities. Specifically, the CJEU holds jurisdiction as outlined in the Treaties.

This also applies to the interpretation and application of this Agreement throughout the transition period.

Comments: The CJEU’s standard jurisdiction will apply to the UK during the transition period, which is set to last until the end of 2020 unless a one- or two-year extension is agreed upon (Article 126). The handling of cases pending at the end of the transition period is addressed by Articles 86-91. One distinction during the transition period is that the UK will not have any judges or Advocates-General on EU courts (see Article 7 of the agreement).

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 the first instance before a UK court or tribunal within eight years of the transition period’s end, where a question arises concerning the interpretation of Part Two of this Agreement, and where the court or tribunal deems a decision on this question necessary to reach a judgment, that court or tribunal may request a preliminary ruling on the matter from the CJEU. However, if the case subject matter concerns a decision on an application made under Article 18(1) or (4), or Article 19, a request for a preliminary ruling can only be made if the case commenced at the first instance within eight years of the date from which Article 19 takes effect.

2. The CJEU holds jurisdiction to issue preliminary rulings on requests made under paragraph 1. These preliminary rulings will have the same legal effect in the UK as those given under Article 267 TFEU in the EU and its Member States.

3. If the Joint Committee reaches a decision under Article 132(1), the eight-year timeframe mentioned in the second subparagraph of paragraph 1 will be automatically extended by the corresponding number of months that the transition period is extended.

Comments: As noted, the transition period is expected to end in 2020 unless a one- or two-year extension is agreed upon. Paragraph 3 clarifies that if the transition period is extended, the eight-year special jurisdiction of the CJEU will begin from this later date. “Part Two” refers to the provisions concerning citizens’ rights, which become effective at the end of the transition period (see Article 185).

The CJEU’s jurisdiction is slightly more limited than under Article 267 TFEU. Under this article, final courts in the UK are not generally obligated to refer cases, whereas they are under Article 267 TFEU. However, the legal impact of such rulings remains the same as under Article 267, meaning they are binding and supersede any conflicting national law (see also Article 4). Legally, it wouldn’t have been possible to establish a non-binding jurisdiction for the CJEU. This is because the CJEU has ruled that its judgments (within its jurisdiction) must be binding, even for non-EU states (see Opinion 1/91, paragraph 38). It is implied that other areas of the Court’s jurisdiction (such as infringement proceedings) will not apply.

As this jurisdiction explicitly applies as long as a case was first brought before UK courts within the eight-year timeframe, it follows that the CJEU will retain jurisdiction to rule on cases pending at the end of that period, even if it has not yet ruled (or been asked to rule) on such cases. (See Article 86 for comparison).

It’s important to highlight that there’s no time limit on the CJEU’s jurisdiction to rule on the agreement’s application regarding UK citizens in EU27 countries if national courts in those countries request a ruling. There’s also no other limitation on its jurisdiction regarding UK citizens in the EU27 (meaning final courts will, in principle, be obligated to refer cases concerning them to the CJEU; and infringement proceedings can apply).

As noted in the UK’s notice on the implications of a ‘no-deal’ scenario for EU27 citizens, the CJEU wouldn’t have jurisdiction over EU27 citizens in the UK if the withdrawal agreement isn’t ratified. As discussed in the other blog post, there would be fewer applicable EU law rules for UK citizens in the EU27 in a ‘no-deal’ scenario.

ARTICLE 159

Monitoring the implementation and application of Part Two

1. In the UK, the implementation and application of Part Two will be overseen by an independent authority (the “Authority”). This body 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 be empowered to receive complaints from EU citizens and their families for this purpose. Following such complaints, the Authority will have the right to pursue legal action in a competent UK court or tribunal, through an appropriate judicial procedure, to seek an adequate remedy.

2. The European Commission and the Authority will each provide annual reports to the specialised Committee on citizens’ rights (as outlined in point (a) of Article 165(1)) concerning the implementation and application of Part Two in the EU and the UK respectively. These reports will detail measures taken to implement or comply with Part Two, and the volume and nature of complaints received.

3. No sooner than eight years after the transition period ends, the Joint Committee will evaluate the Authority’s operation. Following this assessment, it may decide, in good faith, and pursuant to point (f) of Article 164(4) and Article 166, that the UK may dissolve the Authority.

Comments: The Authority will have the power to: (a) receive complaints from EU citizens and their families; (b) conduct independent investigations into alleged violations of the rules by UK “administrative authorities”; and (c) pursue legal action through a competent UK court or tribunal to seek an appropriate remedy if it believes the administration is not responding suitably. It will not, however, be able to issue its own binding decisions on complaints received.

The final draft removed text from the initial draft that stated the Authority’s role was “without prejudice” to other remedies. However, such remedies remain available, considering the specific wording of the citizens’ rights provisions on remedies, as well as Article 158. The final draft also omitted text indicating that the Authority: “may make its findings public”; “shall inform” the Commission of legal actions and “may consult” with the Commission beforehand; and that the Commission could also propose legal actions to the Authority.

_If the withdrawal agreement is ratified, the UK Bill enacting it might provide further details about the Authority, including independence guarantees, staffing, and funding. It may also need to address the process in cases where the Authority provides an unsatisfactory response to a complaint, or fails to respond within a reasonable timeframe. Is there a mechanism for recourse against the Authority in such situations? Must its decisions be justified? It’s also unclear whether there will be time limits for filing complaints or for the Authority to initiate legal proceedings. The Authority doesn’t seem empowered to take action against, or comment on, general legal changes. It appears to have the discretion to publicize its proceedings, and it’s not clear if the Authority’s ability to bring proceedings can directly benefit

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