The resolution of disputes and the role of the ECJ in the proposed withdrawal agreement

Professor Steve Peers, University of Essex*

A key point of contention in post-Brexit EU/UK relations is the degree to which the UK remains bound to the EU Court of Justice (ECJ). This issue arises first in the withdrawal agreement being negotiated, a draft of which was recently proposed by the EU Commission. While it will eventually affect the future relationship between the two, this post focuses on the withdrawal agreement.

This analysis examines the main issues, provides commentary on the proposed withdrawal agreement, and suggests amendments. Note that some issues relate to the acquired rights of EU27 and UK citizens, which will be covered in a subsequent analysis. Previous analyses have addressed the proposed text on the transition period and the Irish border.

Structure of the withdrawal agreement

The primary provisions regarding dispute resolution are found in the “Final Provisions” of the draft withdrawal agreement (Articles 151-168).

Part Six is divided into four titles:

- Title I on “Consistent Interpretation and Application” (Articles 151-156) covers aspects of ECJ jurisdiction, a proposed UK authority to safeguard EU27 citizens’ rights, and other provisions;

- Title II on “Institutional Provisions” (Articles 157-159) establishes a Joint Committee to oversee and implement the Agreement;

- Title III on “Dispute Settlement” (Articles 160-165) includes provisions for both ECJ involvement and unilateral sanctions; and

- Title IV on “Final Provisions” (Articles 166-168).

A complete understanding requires considering other parts of the draft agreement: the “Common Provisions” (Part One: Articles 1-7); citizens’ rights (Part Two: Articles 8-35); the “separation provisions” (Part Three: Articles 36-120); the transition period (Part Four: Articles 121-126); the financial settlement (Part Five: Articles 127-150); and the Protocols on Ireland and UK bases on Cyprus.

Broader context

As an EU Member State, the UK is subject to the ECJ’s jurisdiction, including references from national courts on EU law interpretation or validity, direct challenges to EU institutions’ actions, and infringement actions against Member States for violating EU law.

However, non-EU states are rarely subject to ECJ jurisdiction. This only occurs when international treaties signed by the EU reference EU law, a necessary practice for the EU as, according to ECJ case law, interpretations of EU law by non-EU entities that bind the EU violate EU law.

Dispute settlement, ECJ and the withdrawal agreement: an overview

Article 4(4) of the draft withdrawal agreement states that references to EU law within the agreement must be interpreted according to ECJ case law preceding the transition period’s conclusion. Article 4(5) mandates considering subsequent ECJ case law. Article 2 broadly defines EU law, and Article 5 clarifies that it includes amendments up to the transition period’s end. Articles 4(1) to (3) require the withdrawal agreement to have the same legal force and interpretation rules as during the UK’s membership, and be incorporated into UK primary legislation, ensuring EU27 citizens can directly invoke acquired rights provisions in UK courts.

During the transition period, the ECJ retains its standard jurisdiction over the UK (Article 126). Once the transition period ends (proposed end of 2020: Article 121), Part Three of the Withdrawal Agreement (separation provisions) outlines special rules for ECJ jurisdiction. Articles 82-87 specify continued jurisdiction for pending cases and those related to pre-transition period events. Article 91 addresses UK non-compliance with EU body administrative decisions before the transition period ends.

If the proposed “fallback” rules on the Irish border are implemented, the ECJ will retain jurisdiction over the Protocol on Ireland indefinitely (Article 11 of the Protocol). Additionally, interpreting the Protocol’s EU law rules in line with ECJ case law becomes a permanent requirement (Article 12(2) of the Protocol).

Regarding the core ECJ and dispute settlement rules, Part Six grants the ECJ special jurisdiction over citizens’ rights issues for eight years following the transition period, based on requests from UK courts (Article 151). The UK must establish an independent authority to help EU27 citizens enforce these rights (Article 152). The ECJ also retains jurisdiction over the separation provisions and EU law aspects of the financial settlement post-transition (Article 153).

A Joint Committee will be formed to oversee and implement the agreement (Articles 157-159), which is not inherently controversial. However, its role in settling disputes between the EU and the UK is a contentious issue. Disputes involving individuals and companies will be addressed in national courts, with potential references to the ECJ based on its proposed jurisdiction.

After the transition period, disputes regarding agreement interpretation will be discussed by the Joint Committee, which can refer the matter to the ECJ if both parties agree. If unresolved after three months, either party can unilaterally invoke ECJ jurisdiction (Article 162). If a ruling is allegedly not followed, the ECJ can be asked to rule on the non-compliance and potentially impose a fine (Article 163(1) and (2)). Additionally, either side may impose sanctions on the other (Article 163(3)).

Finally, if the EU believes the UK has not complied with an ECJ ruling during the transition period, it may suspend some of the UK’s internal market benefits. The UK does not have a corresponding power.

Currently, the UK agrees with only some proposals, mainly those concerning citizens’ rights, the transition period, and aspects of the separation provisions. The dispute settlement provisions have not been agreed upon.

Comments

Are the Commission’s proposals legally and politically sound, or are the UK’s objections valid? Firstly, the provisions on EU27 citizens’ rights build upon a previous agreement between the UK and the Commission, establishing special ECJ jurisdiction for eight years and a dedicated UK authority. The Commission’s proposals on the latter could be strengthened, and there is no reason to delay the authority’s creation until the transition period ends, as EU27 citizens may require assistance sooner. Amendments to Articles 152 and 168 are proposed to address these issues.

Secondly, the agreed-upon ECJ jurisdiction during the transition period reflects the overall agreement that EU law and institutions will continue to apply to the UK (except for UK representation within those institutions). A preferable solution would have been integrating the UK into the EFTA Court during this period, granting it a judge and potentially applying the EEA Treaty, allowing greater input into EU law while applying less of it. However, the UK government appears disinterested in this approach.

This brings us to the more controversial, unagreed-upon aspects. It is understandable that the UK seeks to limit ECJ jurisdiction post-Brexit, as it will no longer be a Member State and ECJ jurisdiction over non-EU countries is historically restricted. However, the ECJ’s own case law precedents cannot be ignored: non-EU bodies interpreting EU law in a binding manner for the EU violates EU law. The challenge for the UK, given its stance against future ECJ jurisdiction, is that the withdrawal agreement inherently references EU law. Avoiding the ECJ in the future UK/EU relationship may be less problematic, depending on the contested issue of how much EU law the UK will retain post-Brexit.

Considering this, the Court’s continued jurisdiction over separation issues (detailing how EU laws cease to apply to the UK) and EU law elements of the financial settlement provisions are difficult to circumvent. Due to the ECJ’s stance, any UK-EU disputes in these areas could only be settled by the ECJ. Therefore, Article 153’s jurisdiction over these matters likely cannot be removed.

However, non-judicial sanctions are a separate matter. The prospect of unilateral EU sanctions against the UK for non-compliance with a judgment during the transition period is both unnecessary and unreasonable. It is unnecessary because, as per the EU’s insistence, the ECJ’s usual jurisdiction, including imposing fines for non-compliance, will be in effect. The issue of time limits is irrelevant as cases against the UK pending at the transition period’s end will not be dismissed but decided afterward. It is unreasonable because this remedy would solely apply to the UK (as if no EU27 Member State has ever violated EU law!), hypocritically treating the UK as both a Member State and non-Member State, and avoids political resolution while circumventing the burden of proof requirement for the accusing party in the ECJ. There is no explicit mention of whether the EU’s decision could be legally challenged, which would contradict the EU principle of the rule of law if not allowed.

Post-transition, the situation is more complex: political dispute resolution would be attempted, followed by potential ECJ jurisdiction, then, if an ECJ ruling is allegedly disregarded, a request for the ECJ to impose sanctions. There also exists a poorly drafted, illogical provision allowing for further sanctions, which should be discarded.

The current approach is confusing, treating the UK as both a Member State (compulsory ECJ jurisdiction) and a non-Member State (sanctions). It would be more logical to acknowledge the UK’s future status as a non-Member State and focus on potential sanctions for either party upon unsuccessful dispute settlement attempts, as in the EEA treaty. Requesting an ECJ ruling could remain an option, limiting its jurisdiction to EU law interpretation.

These points, along with technicalities, are detailed in the annotated Part Six text below, which also proposes amendments.

Barnard & Peers: chapter 10, chapter 27

Photo credit: Irish Times

* This blog post was supported by an ESRC Priority Brexit Grant on ‘Brexit and UK and EU Immigration Policy’

Annex – proposed text of withdrawal agreement, Part Six, annotated. My comments in italics; proposed amendments in italics and underline.

PART SIX

INSTITUTIONAL AND FINAL PROVISIONS

TITLE I

CONSISTENT INTERPRETATION AND APPLICATION

Article 151

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

Where, in a case which has commenced at first instance within eight years from the end of the transition period before a court or tribunal in the United Kingdom, a question is raised concerning the interpretation of Part Two of this Agreement, and where a court or tribunal in the United Kingdom seized with that case considers that a decision on that question is necessary to enable it to give judgment in that case, it may request the Court of Justice of the European Union to give a preliminary ruling on that question. The Court of Justice of the European Union shall have jurisdiction to give preliminary rulings on such requests. The legal effects in the United Kingdom of such preliminary rulings shall be the same as the legal effects of preliminary rulings given pursuant to Article 267 TFEU in the Union and its Member States.

Background: This reflects part of para 38 of the joint report. It sets the eight-year time limit starting from the end of the transition/implementation period, whereas that starting point was not definitively decided in the joint report, as it noted that discussions on the transition had yet to take place. It specifies that the CJEU’s powers concern the whole of Part Two, not just the vaguer “interpretation of those rights” in the joint report. As agreed, this differs from Article 267 TFEU in that final courts in the UK are not obliged as a rule to refer cases. However, the legal effects of such rulings are the same as under Article 267. That issue was not mentioned in the joint report, but the CJEU has ruled that its judgments (where its jurisdiction exists) must always be binding, even as regards non-EU states (see Opinion 1/91, para 38). It is implicit that the Court’s other jurisdiction (notably on infringement proceedings) will not apply.

According to Article 168, this provision – and the whole of Title I of Part Six (Articles 151 to 156) will only apply from the end of the transition/implementation period. That temporal limitation appears in the text of Article 151, but not Articles 152 to 156.

Comments: It is not clear what will happen to cases pending at the end of this eight-year period. To address such issues, I have a suggested amendment, to add this sentence: After the end of this eight-year period, Articles 82(2) and (3), 83(2) and 85(1) and (2) shall apply mutatis mutandis. This would mean that the CJEU still has jurisdiction for cases pending before it and courts in the UK at the end of that date, and confirm that its judgments after that date will remain binding on the UK. This is perhaps evident anyway from the final sentence and the words “commenced at first instance within eight years” (and from “litigation brought within 8 years” in the joint report), but it is better to confirm it explicitly.

If the transition period were extended, that would in principle have knock-on effects on this Article. It should be noted that there is no time limit on the CJEU’s jurisdiction to rule on the application of this agreement as regards UK citizens in the EU27. Nor is there any other limit on its jurisdiction relating to them (ie final courts will in principle have to send cases concerning them to the CJEU; infringement proceedings can apply).

Article 152

Monitoring of the implementation and application of Part Two

The United Kingdom shall set up an independent Authority to monitor the implementation and application of Part Two. That Authority shall have the power to receive and investigate complaints from Union citizens and their family members, and to conduct inquiries on its own initiative, concerning alleged breaches by administrative authorities of the United Kingdom of their obligations under Part Two. The Authority may make its findings public. Where it considers that the administrative authority concerned has not acted appropriately on its findings, and without prejudice to any remedies available to the Union citizens or family members concerned, the Authority shall have the right to bring a legal action before a competent court or tribunal in the United Kingdom in an appropriate judicial procedure with a view to seeking adequate redress. The Authority shall inform the European Commission of any such legal actions brought before courts or tribunals in the United Kingdom. It may also consult the European Commission before bringing such legal actions and the European Commission may suggest to the Authority to bring such legal actions.

Background: This is based on part of para 40 of the joint report, which provides as follows:

The implementation and application of the citizens’ rights Part will be monitored in the Union by the Commission acting in conformity with the Union Treaties. In the UK, this role will be fulfilled by an independent national authority; its scope and functions, including its role in acting on citizens’ complaints, will be discussed between the parties in the next phase of the negotiations and reflected in the Withdrawal Agreement. There should be regular exchange of information between the UK Government and the Commission.

Comments: The “scope and functions” of this body, in the proposal, would be: a) “to receive and investigate complaints from Union citizens and their family members”; b) “to conduct inquiries on its own initiative, concerning alleged breaches” of the rules by UK “administrative authorities”; and c) to “bring a legal action before a competent court or tribunal in the United Kingdom in an appropriate judicial procedure with a view to seeking adequate redress”, if it believes that the administration does not react appropriately, “without prejudice to” remedies the EU citizens and their family members have. Implicitly it will not be able to make its own binding decisions on complaints brought to it. As for procedural rules: the authority “may make its findings public”; it “shall inform” the Commission on legal actions and “may consult” it beforehand; the Commission may also suggest that the authority brings such actions.

This clause raises certain questions. In light of the recent botched attempt to appoint Toby Young to a university regulator, without following a proper process, there might be some doubts about the integrity of the appointment process. The authority might lack sufficient staff and funding. At the very least, the UK should make a declaration attached to the agreement, specifying more detail on these points. Although the power for the authority to make its own decisions (which the government would have to challenge) would be useful, the proposed powers (broadly comparable to the Commission’s, although there are no details of the process as compared to Article 258-260 TFEU on infringement proceedings) are an essential minimum, and hopefully the UK government will not seek to weaken them.

The question arises what happens if the authority gives a disappointing reply to a complaint, or fails to reply within a reasonable time. Is there a remedy against the authority in that case? Must its decisions be reasoned? The Commission may be reluctant to push this issue because there are no effective remedies against its infringement decisions following individual complaints – and it likes it that way. There are also questions of whether there will be time limits upon bringing complaints, or upon the authority bringing legal proceedings. The authority does not appear to have the power to bring proceedings as regards general changes to the law, or to comment on them. It seems to have the discretion whether to make its proceedings public. It is not clear that the authority’s power to bring proceedings can lead to a remedy for the complainant; and it would be useful if the authority could submit observations in cases which it didn’t bring itself, in accordance with with Articles 154 and 155.

Substantively, the definition of “family members” logically entails an implied cross-reference to the definition in Article 8, in light of the reference to Part Two. “Union citizens” are defined in Article 2, which applies to the entire agreement.

Note that according to Article 168, this provision will only apply from the end of the transition/implementation period. This seems highly objectionable, since the UK will be rolling out a “settled status” scheme well before that time, and EU27 nationals may need the assistance this body will offer as soon as possible after Brexit day. I have therefore suggested an amendment to Article 168. In comparison, the Commission’s powers to apply its infringement proceedings powers are unlimited in time.

To ensure that the powers of this authority are effective, I suggest an amendment based on the powers of data protection authorities. It would apply equally to the Commission, although it might be questioned whether such extra powers alter the “essential elements” of its powers pursuant to ECJ case law. I would argue not, since the Commission’s independence from Member States remains intact.

Suggested amendment: The United Kingdom shall set up an Authority to monitor the implementation and application of Part Two. That Authority shall act with complete independence in performing its tasks and exercising its powers in accordance with this agreement. The United Kingdom shall ensure that the Authority has the human, technical and financial resources, premises and infrastructure necessary for the effective performance of its tasks and exercise of its powers.

The Authority shall have the power to receive and investigate complaints from Union citizens and their family members, and to conduct inquiries on its own initiative, concerning alleged breaches by administrative authorities of the United Kingdom of their obligations under Part Two. It shall inform the complainant of the progress and the outcome of the investigation within a reasonable period. [It shall have the power to order the administrative authorities to ensure compliance with this Agreement.] It shall give reasons for its decisions, which shall be subject to effective judicial review.

The Authority shall make its findings public, with the consent of the complainant. Where it considers that the administrative authority concerned has not acted appropriately on its findings, and without prejudice to any remedies available to the Union citizens or family members concerned, the Authority shall have the right to bring a legal action before a competent court or tribunal in the United Kingdom in an appropriate judicial procedure with a view to seeking adequate redress for the benefit of the individual(s) concerned. In other pending cases, the Authority may submit written observations to the courts or the tribunals in the United Kingdom. With the permission of the court or tribunal in question, it may also make oral observations.

The Authority shall inform the European Commission of any such legal actions brought before courts or tribunals in the United Kingdom. It may also consult the European Commission before bringing such legal actions and the European Commission may suggest to the Authority to bring such legal actions. The authority may also suggest to the Commission to commence an infringement procedure in accordance with the Treaties, and may submit observations in accordance with Article 154.

This Article shall apply mutatis mutandis to the Commission.

Article 153

Jurisdiction of the Court of Justice of the European Union concerning Parts Three and Five

Without prejudice to Article 83 of this Agreement, Articles 258, 260, and 267 TFEU shall apply in respect of the interpretation and application of Part Three of this Agreement and of applicable Union law referred to in Article 129 and Article 131(1) or (2) of this Agreement. To this effect, any reference made in Articles 258, 260, and 267 TFEU to a Member State shall be read as including the United Kingdom.

Comment: This grants the ECJ jurisdiction over infringement actions and preliminary rulings concerning the separation provisions (Part Three) and the references to EU financial law in Part Five (financial settlement), which remain applicable after the transition period if payments are made after that date.

According to Article 168, this provision will only apply after the transition period concludes. The Court’s standard jurisdiction will remain in effect until then.

The cross-reference to Article 83 covers cases initiated before the transition period’s end, which will remain under the ECJ’s jurisdiction for future decisions.

Article 154

Submission of statements of case or written observations

Where a court or tribunal of a Member State refers a question concerning the interpretation of this Agreement to the Court of Justice of the European Union for a preliminary ruling, the decision of the national court or tribunal containing that question shall be notified to the United Kingdom. The United Kingdom shall be entitled to submit statements of case or written observations to the Court of Justice of the European Union within two months of such notification.

Background: This Article partially reflects the joint report’s second sentence of para 39: “In the same vein, it is envisaged to give the UK Government and the European Commission the right to intervene in relevant cases before the CJEU and before UK courts and tribunals respectively.” This Article defines those “relevant cases”. Note that this applies to the entire withdrawal agreement, not just the citizens’ rights provisions. Article 168 states this provision will only apply after the transition/implementation period ends, but unlike Article 151, it has no set expiry date.

Comment: This right of intervention is not unusual. For instance, EFTA EEA states can (and occasionally do) present their views in CJEU cases relevant to the EEA treaty. However, this represents a very narrow interpretation of “relevant cases.” Surely, a case is relevant not only when directly concerning the withdrawal agreement but also when it involves an EU law issue potentially impacting the UK, as per Article 4(5), which requires UK authorities to consider relevant CJEU case law decided after the transition period. Additionally, allowing the Article 152 Authority to intervene in cases concerning EU27 or UK citizens seems appropriate, as the UK government might not be inclined to defend their rights.

Therefore, two amendments are proposed. Firstly, the first sentence should read: “Where a court or tribunal of a Member State refers a question concerning the interpretation of this Agreement, or a provision of Union law within the scope of Article 4(5) of this Agreement…” Secondly, add a new sentence at the end: “Where the case concerns Part Two of this Agreement, this Article shall also apply mutatis mutandis to the Authority referred to in Article 152.”_

Article 155

Participation of the European Commission in cases pending in the United Kingdom

Where the consistent interpretation and application of Part Two of this Agreement so requires, the European Commission may submit written observations to the courts or the tribunals in the United Kingdom in pending cases where the interpretation of the Agreement is concerned. The European Commission may, with the permission of the court or tribunal in question, also make oral observations. The European Commission shall inform the United Kingdom of its intention to submit observations before formally doing so.

Background: This Article also partially reflects the joint report’s second sentence of para 39: “In the same vein, it is envisaged to give the UK Government and the European Commission the right to intervene in relevant cases before the CJEU and before UK courts and tribunals respectively.” This article defines those “relevant cases." Unlike Article 154, this article is limited to citizens’ rights provisions and does not encompass the entire withdrawal agreement. Per Article 168, this provision becomes applicable only after the transition/implementation period ends. However, unlike Article 151, it does not expire after eight years.

Comment: This explicit power to intervene in national court proceedings, while potentially novel, could be compared to the Commission’s power to submit observations in EFTA Court proceedings. It overlaps with the Authority’s power to initiate cases and, for a period, with UK courts’ ability to refer questions about citizens’ rights to the CJEU.

Article 156

Regular dialogue and exchange of information

In order to facilitate the consistent interpretation of this Agreement and in full deference to the independence of courts, the Court of Justice of the European Union and the United Kingdom’s highest courts shall engage in a regular dialogue, analogous to the one which the Court of Justice of the European Union pursues with the highest courts of the Member States.

Background: This Article partially reflects the Joint Report’s para 39, which states: “Consistent interpretation of the citizens’ rights Part should further be supported and facilitated by an exchange of case law between the courts and regular judicial dialogue.” However, Article 156’s scope is not limited to citizens’ rights and lacks explicit mention of exchanging case law (or any other “information” referenced in the article’s title). As per Article 168, this provision applies only after the transition/implementation period ends.

Comments: The absence of provisions for exchanging information or case law is unusual, especially as the EU has incorporated such exchanges in treaties with non-EU states. Therefore, an amendment is suggested, adding a sentence at the end: “The Joint Committee shall establish a mechanism to ensure regular mutual transmission of case law and other information relevant to this Agreement.”

TITLE II

INSTITUTIONAL PROVISIONS

Article 157

Joint Committee

  1. A Joint Committee is hereby established, comprising representatives of the Union and of the United Kingdom. The Joint Committee shall be co-chaired by the Union and the United Kingdom.

  2. The Joint Committee shall meet at least once a year or at the request of the Union or the United Kingdom. The Joint Committee shall set its meeting schedule and its agenda by mutual consent.

  3. The Joint Committee shall be responsible for the implementation and application of this Agreement. The Union or the United Kingdom may refer to the Joint Committee any issue relating to the implementation, application and interpretation of this Agreement.

  4. The Joint Committee shall:

(a) supervise and facilitate the implementation and application of this Agreement;

(b) decide on the tasks of the specialised committees and supervise their work;

(c) seek appropriate ways and methods of preventing problems that might arise in areas covered by this Agreement or of resolving disputes that may arise regarding the interpretation and application of this Agreement;

(d) adopt its own rules of procedure, as well as rules of procedure of the specialised committees;

(e) consider any matter of interest relating to an area covered by this Agreement;

(f) adopt decisions and make recommendations as set out in Article 159;

(g) adopt amendments to this Agreement in the cases provided for in this Agreement.

5. The Joint Committee may:

(a) delegate responsibilities to the specialised committees, except those referred to in points (b), (d), (f) and (g) of paragraph 4;

(b) establish other specialised committees than those established by Article 158 in order to assist it in the performance of its tasks;

(c) change the tasks assigned to the specialised committees or dissolve any of those committees; and

(d) take such other action in the exercise of its functions as decided by the Union and the United Kingdom.

  1. The Joint Committee shall issue an annual report on the functioning of this Agreement.

Comment: The Joint Committee holds various responsibilities within the Agreement beyond citizens’ rights, primarily updating the social security annex and potentially serving as a platform for dispute resolution (see Articles 162 to 165 below). Its recommendations may also be relevant, despite the lack of explicit reference within the citizens’ rights section.

Article 158

Specialised committees

1. The following specialised committees are hereby established:

(a) the Committee on citizens’ rights;

(b) the Committee on the other separation provisions;

(c) the Committee on issues related to the island of Ireland;

(d) the Committee on Sovereign Base Areas related issues;

(e) the Committee on the financial provisions.

2. Unless otherwise provided in this Agreement, or unless the co-chairs decide otherwise, the specialised committees shall meet at least once a year. Additional meetings may be held at the request of the Union, the United Kingdom, or of the Joint Committee. They shall be co-chaired by representatives of the Union and of the United Kingdom. The specialised committees shall set their meeting schedule and agenda by mutual consent. The specialised committees may draw up draft decisions and recommendations and refer them for adoption by the Joint Committee.

3. The Union and the United Kingdom shall ensure that their respective representatives on the specialised committees have the appropriate expertise with respect to the issues under discussion.

4. The specialised committees shall inform the Joint Committee of their meeting schedules and agenda sufficiently in advance of their meetings and shall report to the Joint Committee on results and conclusions from each of their meetings. The creation or existence of a specialised committee shall not prevent the Union or the United Kingdom from bringing any matter directly to the Joint Committee.

Comment: Note the inclusion of a specialized committee dedicated to citizens’ rights, which is likely to remain active for a considerable time due to the extended timeframe for applying Part Two of the Agreement.

Article 159

Decisions and recommendations

  1. The Joint Committee shall, for the purposes of this Agreement, have the power to adopt decisions in respect of all matters for which this Agreement so provides and make appropriate recommendations to the Union and the United Kingdom.

  2. The decisions adopted by the Joint Committee shall be binding on the Union and the United Kingdom, and the Union and the United Kingdom shall implement them. They shall have the same legal effect as this Agreement.

  3. The Joint Committee shall adopt its decisions and make its recommendations by mutual consent.

Comment: The Joint Committee’s primary decision-making power regarding citizens’ rights is adopting new social security regulations under Article 31. Its dispute settlement powers (discussed below) and recommendations may also be relevant, despite the lack of specific reference in the citizens’ rights section.

TITLE III

DISPUTE SETTLEMENT

Article 160

Cooperation

The Union and the United Kingdom shall, at all times, endeavor to agree on the interpretation and application of this Agreement, and shall make every attempt through cooperation and consultations to arrive at a mutually satisfactory resolution of any matter that might affect its operation.

Comment: This “best endeavors” article encourages seeking political solutions to disputes. While lacking specific legal obligations, it could prove relevant in practice, as disputes under EU free trade agreements are often resolved diplomatically.

Article 161

Exclusivity

For any dispute between the Union and the United Kingdom arising under this Agreement, the Union and the United Kingdom shall only have recourse to the procedures provided for in this Agreement.

Comment: This restricts the use of alternative dispute settlement methods beyond those defined in the Agreement, unless the Agreement itself is modified.

Article 162

Settlement of disputes

1. Without prejudice to Article 153, the Union or the United Kingdom may bring any dispute which concerns the interpretation or application of this Agreement before the Joint Committee.

2. The Joint Committee may settle the dispute through a recommendation. It shall be provided with all information which might be of use in making possible an in-depth examination of the situation, with a view to finding an acceptable solution. To this end, the Joint Committee shall examine all possibilities to maintain the good functioning of the Agreement.

3. The Joint Committee may, at any point, decide to submit the dispute brought before it to the Court of Justice of the European Union for a ruling. The Court of Justice of the European Union shall have jurisdiction over such cases and its rulings shall be binding on the Union and the United Kingdom.

4. If the dispute has not been settled within three months after it was brought before the Joint Committee and has not been submitted to the Court of Justice of the European Union by the Joint Committee pursuant to paragraph 3, the dispute may be submitted to the Court of Justice of the European Union for a ruling at the request of either the Union or the United Kingdom. The Court of Justice of the European Union shall have jurisdiction over such cases and its rulings shall be binding on the Union and the United Kingdom.

Comments: Article 168 dictates that this provision will only take effect after the transition period. The dispute settlement clause applies to the entire Agreement, not just citizens’ rights, and is adapted from Article 111 of the EEA treaty. While para 1 is practically identical (barring party names), and para 2 is similar with the added “through a recommendation,” paras 3 and 4 differ significantly. Under the EEA Treaty, the EEA Joint Committee can, by mutual agreement and after three months, request the CJEU’s opinion on treaty rules identical to EU law. If unresolved or referred to the CJEU after six months, either party can implement safeguard measures or disapply parts of EEA rules due to divergence. The binding nature of CJEU rulings is explicitly stated, although this reiterates Opinion 1/91. The EU institution responsible for initiating proceedings needs clarification.

This Withdrawal Agreement version relies more heavily on the CJEU: allowing earlier referral with mutual consent; permitting unilateral referral after three months; granting jurisdiction over the entire agreement (not just EU law aspects, though much references EU law); and removing resolution via safeguard or divergence decisions, although Article 165 allows for sanctions from the EU side only during the transition period, and a poorly drafted sanctions clause exists in Article 163(3). This provision overlaps with the Court’s eight-year jurisdiction over citizens’ rights post-transition. The CJEU’s jurisdiction here would be subject to the rules of procedure outlined in an Annex (Article 164).

_This proposal is problematic for its one-sidedness, diverging from the EEA model, which the EU deemed legally and politically acceptable. This different approach to a similar issue could be perceived as “cherry-picking.” While establishing a system where entities other than the CJEU hold final say on EU law interpretation would violate EU law (see Opinion 1/92), the EEA system was deemed compatible as it ultimately allows for a form of sanction by

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