Articles 157 – 159 of the draft Withdrawal Agreement set out the institutional arrangements specific to the Withdrawal Agreement.
The proposed Joint Committee is to meet annually; Article 157(3) describes its jurisdiction as covering all interpretation, application and implementation concerns that either party may have concerning the WA.
The Joint Committee’s role is to oversee the agreement as a whole, and it can adopt binding decisions in light of this function. Having a ‘committee’ as the primary governing institution is how most international agreements (including EFTA and the Swiss-EU bilateral agreements) operate: representatives from both (or all) parties make up a steering committee which, by consent, takes decisions regarding the agreement signed between the parties.
Article 158 proposes the creation of a number of ‘Specialised Committees’, functioning under powers delegated by the Joint Committee. The Specialised Committees proposed by the Commission cover the following parts of the draft WA:
- Citizens’ rights
- Other separation provisions
- The Protocol on Ireland/Northern Ireland
- The Protocol on Sovereign Base Areas in Cyprus
- The financial provisions
The Specialised Committees are to be composed of experts in the relevant areas covered, and will ordinarily also meet once a year under the Commission’s proposals. This contrasts with the Joint Committee, whose membership is described only as “comprising representatives of the Union and of the UK”, and not necessarily experts in any of the specific parts of the WA.
Article 159 makes clear that the Joint Committee, and not the parties to the WA, is intended to govern the WA once concluded. It can take decisions that are binding on both parties and issue recommendations to the parties. This is less controversial than it sounds, however, as the Joint Committee is composed of representatives of both parties, and per Article 159(3), is intended to take all decisions “by mutual consent”.
In its draft text for discussion on the implementation period, 7 February 2018, the Government proposed text on the functioning of the Commission’s proposed Joint Committee to oversee the withdrawal agreement. It stated:
The UK agrees with the EU that a Joint Committee should be established to supervise the Withdrawal Agreement. The Joint Committee should have specific functions in relation to the implementation period, including resolving any issues which might arise concerning the proper functioning of the Agreement, having regard to the duty of mutual good faith which should apply between the UK and the EU, for example, in relation to acts of Union law adopted during the implementation period. Arrangements will need to protect the rights and interests of both parties.
The European Scrutiny Committee (ESC) found the Government’s proposed text for the operation of the Joint Committee mechanism under the transitional arrangement “very vague”, and did not think it made clear “whether the UK is seeking a similar unilateral right to that under the EEA Agreement to refuse to implement new EU law”.
The European Parliament has called for the EU representatives on the Joint Committee to be “subject to appropriate accountability mechanisms involving the European Parliament”. 90 But it remains to be seen whether the UK Parliament will have a similar level of involvement in the Joint Committee process.
Enforcement and Dispute Resolution
Articles 151 and 152 set out the monitoring and enforcement provisions agreed regarding citizens’ rights, whereby UK courts would have the power to refer questions about the EU law referred to in Part 2 of the draft WA for a period of eight years following the end of transition, and UK compliance with Part 2 of the WA would be monitored by an independent authority set up by the UK for that purpose.
An addition to Article 152 in the 19 March draft, however, introduces the possibility for this independent UK monitoring authority to be abolished (by agreement in the Joint Committee) at any point later than 8 years following the transition. It is unclear what consequences this will have for the enforcement of Part II of the agreement.
Article 151 sets out the provisions giving the CJEU jurisdiction over citizens’ rights queries and gives UK courts the power to refer preliminary references (questions on the interpretation of EU law) for a period of 8 years post-transition. The text of Article 151 confirms that the CJEU’s judgments on the interpretation of the articles on Citizens’ Rights would be binding on domestic courts, as it states that the referral procedure would have the same legal effect as the Article 267 TFEU procedure which currently binds domestic courts.
Article 155 similarly sets out conditions agreed in the Joint Report, regarding Commission participation in UK cases concerning Part 2 of the draft WA.
New Provisions on CJEU Jurisdiction
Article 153 makes clear that where there are any questions about the meaning (interpretation and application) of the law in question, these fall within the jurisdiction of the CJEU – meaning that enforcement actions (Articles 258 – 260 TFEU) and preliminary references (Article 267 TFEU) in light of them will remain possible for the UK as well as the EU Member States.
This too is unlikely to be controversial; as these parts of the agreement are time-limited and deal only with ‘ongoing’ procedures following the transition, it seems logical that the CJEU would retain jurisdiction over the interpretation of EU law regarding those procedures.
However, other provisions of Part 6 set out a more general jurisdiction for the CJEU. The first example of this is Article 154, which suggests that the other Member States would be able to refer questions about the WA to the CJEU for interpretation. This does not appear time limited; and as Part 2 of the draft WA is intended to last for the lifetime of the EU and UK nationals covered by its provisions, this would mean that the CJEU would remain able to pronounce on the meaning of commitments contained in the WA (with the UK able to submit observations) for almost another century. It is not entirely clear how this fits with the role of the Joint Committee, which (per Article 157) appears to have concurrent jurisdiction on the interpretation of the WA.
After setting out a general provision promising cooperation and (de facto) good faith negotiation between the parties in Article 160, it comments further on the intended future jurisdiction of the CJEU.
Article 162 was not alluded to in the Joint Report, but sets out a three-step dispute resolution procedure for any conflicts arising under the withdrawal agreement, should consultation and cooperation (as in Article 160) not lead to a mutually agreed solution.
First, notwithstanding the ability for the CJEU to hear any disputes about the interpretation and application of Parts Three and Five of the WA, both the UK and the EU can take any disputes to the Joint Committee administering the WA and ask it to resolve a dispute the parties are having. Under Article 162(2), the Joint Committee may issue a ‘recommendation’. The procedure outlined sounds like nonbinding mediation; Article 162(2) does not suggest that the ‘recommendation’ is binding on either party, but only that the Joint Committee will seek to find a solution acceptable to both parties.
Article 162(3) makes clear that where a dispute has been brought to the Joint Committee, it is effectively out of the hands of the parties to the agreement. The Joint Committee will either, as per Article 162(2), put forth a recommendation, or if it cannot find a solution that will prove acceptable to both parties, under Article 162(3), it may at any time refer the dispute to the CJEU for a binding ruling (on the interpretation and application of the WA). Jurisdiction of the CJEU here is automatic and perpetual: the parties cannot opt out of such a reference, and the ability for the Joint Committee to refer questions about the WA is not time-limited.
There is a degree of sovereign decision-making implied in Article 162(3), in that it might be the UK who refers a dispute to the Joint Committee in the first place, and thus ‘consents’ to it referring questions to the CJEU. However, Article 162(1) makes clear that either party can refer a dispute to the Joint Committee. It may consequently not be the UK who engages this process, but it will nonetheless be party to it.
Article 162(4) builds on this same referral process. Where either party has taken the dispute to the Joint Committee, should the Joint Committee fail to resolve the dispute or refer the dispute to the CJEU within three months, either party to the agreement may then refer it to the CJEU. In practice, the EU is perhaps more likely to exercise this option than the UK. All the same, the UK and the EU will both be aware of this possibility once a dispute is referred to the Joint Committee, per the text of Article 162. This provision goes beyond the analogous section of the EEA Agreement, under which a dispute can only be referred to the CJEU with the consent of the EFTA-EEA states. 91
Where either the Joint Committee or one of the parties has referred an
Article 162 dispute to the CJEU and the ‘losing party’ to the dispute has not complied with the binding CJEU ruling resulting from that referral, the ‘winning party’ can bring a case before the CJEU. The CJEU will again have binding jurisdiction over such cases.
Article 163(2) makes clear that the CJEU could impose a lump sum or penalty payment on the ‘losing party’. Where non-compliance has taken place, and presumably before the CJEU has responded with a lump sum or penalty payment, Article 163(3) makes clear that the ‘winning party’ can suspend parts of the agreement other than the citizens’ rights part, as well as parts of any future agreement, struck between the UK and the EU.
Such suspension needs to be proportionate to the breach itself, and the CJEU will have the jurisdiction to judicially review any such suspension of benefits.
The WTO would suggest suspensions of benefits will be time-limited and should be supplanted by a CJEU ruling of lump sum/pecuniary penalty as well as belated compliance, but that is not made clear in Article 163.
The UK Position
Articles 162 onwards conflict with a clear UK ‘red line’: namely, the ending of the jurisdiction of the CJEU in the UK. Under these proposals, the ‘appeals’ mechanism that the WA will function under will always be the CJEU. This appears to be unprecedented in international law: in no international agreement is the neutral ‘decision-making’ authority the (de facto) constitutional court of one of the parties.
Where the UK and the EU have managed to find broad agreement on a wide variety of institutional matters set out in the draft WA, including on the creation and role of the Joint Committee as set out above and oversight of Part II of the agreement, the provisions on dispute resolution have indeed proven to be contentious.
Beyond a general agreement to attempt consultations before seeking more formal dispute resolution in Article 160, and that the only possible means of dispute resolution applicable to the agreement will be found in the agreement in Article 161, none of the other provisions on dispute resolution have been agreed in principle. They also have not been amended, however, so it remains speculative what the UK response to the enhanced CJEU role proposed has been.