Thursday, 8 February 2018

The Running Commentary Begins: Annotation of the proposed Withdrawal Agreement




Professor Steve Peers, University of Essex

Yesterday, the EU Commission for the first time proposed the text of part of the Brexit withdrawal agreement. From the legal point of view, ultimately the withdrawal agreement (if it is successfully negotiated and comes into force) will be the key legal text governing the Brexit process as such (there will be post-Brexit treaties governing the future relationship between the EU and the UK).

Due to its importance, I will provide what the UK’s Prime Minister once disdainfully referred to as a ‘running commentary’ on the draft text of the agreement as it develops. Several caveats apply, however. First of all, this is a partial text, comprising the part of the treaty on the transitional period (which the UK government would prefer to call the ‘implementation period’) and some (probably not all) of the part on common provisions. So this is the first of perhaps many instalments of the commentary: there’s a lot of running ahead. The Articles in the final withdrawal agreement will be numbered properly, but I have used the Commission’s provisional numbering (where it suggested numbers) for now.

Secondly, this text has yet to be agreed with the other party to the talks (the UK), which has indicated its disagreement with at least some parts of this proposal.

Thirdly, to some extent this text is not even the EU27’s position, because only part of it reflects the EU27 negotiation directives on the transition period recently adopted by Member States in the EU Council, which I annotated here. I have indicated whether an issue in the proposed text was referred to in the negotiation directives or not. If it was not referred to in those directives, then the Commission is on a ‘frolic of its own’ on those points, and its suggestions may not necessarily represent the view of Member States. Some of these points will be more controversial with the Member States than others: I expect it’s unlikely that Member States will argue with the Commission’s proposal here on European Schools, for instance. But as I suggest below, one of the Commission’s suggestions is arguably a highly inappropriate breach of its position as EU negotiator.

Conversely, where the text does represent the view of Member States, the Commission’s negotiation position should not simply be dismissed (as some in the UK do) as its own institutional preference. Put simply, it might be harder for the UK to convince EU27 Member States to change their own negotiation position, than it would be for the UK to convince those States not to follow the Commission’s institutional preferences.

In addition to the parts of the withdrawal agreement on the transition period and common provisions proposed yesterday, there will be parts dealing with ‘governance and dispute settlement’ (referred to in a footnote in yesterday’s text) and the ‘financial settlement’ (referred to in the introductory section of yesterday’s text).  There will necessarily also be a part dealing with the rights of EU27 and UK citizens who moved before Brexit day: I recently made detailed suggestions as to what that text should include.  I assume there will also be parts on the Irish border and on ‘winding up’ the UK’s involvement with EU law, such as what happens to pending ECJ cases or pending European Arrest Warrants, although the proposal on the transitional period would in practice delay the application of such rules.

On the financial settlement in particular, yesterday’s proposal says:

It should be noted that the detailed provisions relating to the financial settlement aspects of the transition will be covered under the Financial Provisions of the Withdrawal Agreement. In addition to the elements contained in the Joint report of 8 December 2017, the Financial Provisions of the Withdrawal Agreement should also cover the financing, during the transition period, of the relevant Common Foreign and Security Policy and Common Security and Defence Policy agencies or operations on the basis of the same contribution key as before the withdrawal date.

There is, however, no reference in yesterday’s proposal to the EU27 position that acquired rights for EU27 citizens who moved to the UK, and for UK citizens who moved to the EU27, will still be obtained for those who move during the transition period. The UK government has contested this suggestion.

One can speculate why the Commission has begun to draw up legal texts as part of the negotiation process. In any event, the December joint report on ‘sufficient progress’ in the Brexit talks referred implicitly to the intention to draw up draft texts related to the partly agreed parts of the withdrawal agreement, so we might expect more of the draft soon.

On the judicial front, the practical effect of drawing up legal texts of the withdrawal agreement is that as the final shape of the agreement becomes clearer, it becomes possible to ask the EU’s Court of Justice to clarify any disputed legal issues relating to the withdrawal agreement in advance. (The Court will not give an advance ruling on a proposed international treaty if the intended text of the proposed treaty is too uncertain: see Opinion 2/94 where the Court ruled it could only clarify some aspects of the EC’s proposed accession to the ECHR). Time is running out to give this opinion before Brexit day if the Court were asked, although it could fast-track a case if need be (Opinion 1/94 on accession to the WTO was decided in seven months).

Barnard & Peers: chapter 27

Photo credit: Financial Tribune



Commentary on the draft Withdrawal Agreement

Version of 8 February 2018



PART [X] [of the Withdrawal Agreement]

COMMON PROVISIONS

[Article x

Definitions]

[1. ‘Union law’ shall mean:]

 (i) the Treaty on European Union ("TEU"), the Treaty on the Functioning of the European Union ("TFEU") and the Treaty establishing the European Atomic Energy Community ("Euratom Treaty"), together referred to as “the Treaties”, as amended or supplemented, as well as the successive Treaties of Accession;

(ii) the general principles of Union law;

(iii) the acts adopted by the institutions, bodies, offices or agencies of the Union;

(iv) the international agreements to which the Union and/or Euratom is party;

(v) the agreements between Member States entered into in their capacity as Member States of the Union and/or of Euratom;

(vi) decisions and agreements of the Representatives of the Governments of the Member States meeting within the European Council or the Council.

The text here is taken from footnote 1 to the proposal, which reads: “The Withdrawal Agreement will contain, in its Part on Common Provisions, an article defining Union law as meaning:…” I have suggested a title for the Article. Presumably there will be other definitions in the withdrawal agreement too.  If not, this Article might simply be titled ‘Definition of Union law’.

This text reflects (and fleshes out) the first sentence of para 13 of the negotiation directives, which say that the transition rules should cover “the whole of the Union acquis, including Euratom matters”. It could be compared a contrario to the text of an accession treaty to the EU.

Oddly, there is no explicit mention here of the EU Charter of Rights - although it is referred to in the Treaties and legislation, it is a separate legal text.

[Article X + 1

Interpretation]

1.       The provisions of this Agreement referring to concepts or provisions of Union law in their implementation and application are interpreted in conformity with the relevant decisions of the Court of Justice of the European Union given before the end of the transition period.



2.       Where a provision of Union law is amended, supplemented or replaced during the transition period, the reference to this provision of Union law is to be read as referring to the amended, supplemented or successor provision, provided that the change takes effect before the end of the transition period.

The text here is also taken from footnote 1 to the proposal, which reads: “The Part on Common Provisions will also contain an article to the effect that…” the text of paragraph 1, and “Furthermore, a specific article of the Part on Common Provisions will clarify that…” the text of paragraph 2. I have added a suggested heading for the title of the Article. It is possible that these will end up as separate Articles. There might be other rules added on interpreting the withdrawal agreement.

Since they will appear in the Common Provisions of the agreement, these cross-references to the development of case law or legislation during the transition period will presumably also apply to the citizens’ rights and financial settlement provisions of the agreement.

The UK government is particularly concerned about being bound by EU legislation adopted during the transition period without its involvement, although note that this rule only applies where existing law is amended and where that amendment "takes effect" before the end of the transition period. Possibly point (iii) in the previous Article is meant to cover cases of brand new legislation, but this is unimpressive drafting. Also, the term “takes effect” is unclear: Directives enter into force immediately, but only have full legal impact after the deadline to transpose them, which is usually two years later.

In any event, the proposals do not reflect para 59 of the December joint report on progress in the Brexit talks, which states that future changes to the basic EU funding and spending laws which affect the UK will not apply to it, which would for instance prevent any changes being made to the UK rebate after it loses its power to veto such changes. However, as noted above, the Commission states that issues relating to the financial settlement will be in a separate part of the withdrawal agreement, so this issue might be covered there.

[Article NN

References to Member States]

For the purposes of this Agreement, all references to Member States and competent authorities of Member States in provisions of Union law made applicable by this Agreement shall be read as including the United Kingdom and its competent authorities, except as regards:

(a) the nomination, appointment or election of members of the institutions, bodies, offices and agencies of the Union, as well as the participation in the decision-making of the institutions;

(b) the attendance in the meetings of the committees referred to in Article 3(2) of Regulation (EU) No 182/2011 of the European Parliament and of the Council, of Commission expert groups or of other similar entities, or in the meetings of expert groups or similar entities of bodies, offices and agencies of the Union, unless otherwise provided in this Agreement;

(c) the participation in the decision-making and governance of the bodies, offices and agencies of the Union; […].

The text here is taken from footnote 2 to the proposal, which reads: “The Withdrawal Agreement will contain, in its Part on Common Provisions, the following:” I have suggested a title for the Article. I refer to this as ‘Article NN’ because the proposed Article X+2(1), which refers to it, does so (see below). There will likely be other Articles in the ‘Common Provisions’ part of the agreement. It is not clear why there are deleted words in point (c). Note that the proposed Article X+2(4) includes a derogation from this Article, allowing some limited participation of the UK in EU bodies as an exception.

This text reflects the second sentence of para 13 of the negotiation directives, which states that “the Union acquis should apply to and in the United Kingdom as if it were a Member State”, as well as the final sentence of para 18 and the first sentence of para 19 on the exclusions from a UK role in the institutions.

While the Treaties only refer to Member States as having a full decision-making role within EU institutions, there is nothing to rule out consultation with non-Member States. Indeed, the Schengen association agreement with Norway and Iceland gives them consultation rights at ministerial level. The notion that the UK is expected to apply new EU law (see the previous Article) without even being informally consulted on the relevant proposals therefore has a vindictive tinge to it. In any event, the proposals do not reflect para 30 of the December joint report on progress in the Brexit talks, which states that there should be a system to decide jointly on the incorporation of future amendments to the social security rules in the withdrawal agreement.



PART [X] [of the Withdrawal Agreement]

TRANSITION PERIOD

Article X

Transition period

There shall be a transition period, which shall start on the date of entry into force of this Agreement and end on 31 December 2020.

This text reflects para 22 of the negotiation directives. The end date is convenient for the EU27 side as it corresponds with the end of the current multi-annual EU budget cycle. For its part, the UK has referred to a transition period of “around two years”.

As the text stands, the transition period could not be extended unless another clause is added in the withdrawal agreement to allow for this. If no such clause is added, extending the transition period after Brexit day would need a new treaty adopted on a different legal basis than Article 50 (which only applies to the withdrawal process) which would need to be adopted by unanimity and possibly also ratification by national parliaments (although some or all of the treaty could apply provisionally while national ratification was taking place).

Note that Article X+1(2), discussed below, provides conversely for part of the transition period to be curtailed as regards foreign policy issues.



Article X + 1

Scope of the transition

1. Unless otherwise provided in this Part, Union law shall be binding upon and applicable in the United Kingdom during the transition period.

However, the following provisions of the Treaties and acts adopted by the institutions, bodies, offices or agencies of the Union shall not be applicable to and in the United Kingdom during the transition period:

(a) provisions of the Treaties and acts which, pursuant to Protocol (No 15) on certain provisions relating to the United Kingdom of Great Britain and Northern Ireland, Protocol (No 19) on the Schengen acquis integrated into the framework of the European Union or Protocol (No 21) on the position of the United Kingdom an Ireland [sic] in respect of the area of freedom, security and justice, or pursuant to the provisions of the Treaties on enhanced cooperation, were not binding upon and applicable in the United Kingdom before the date of entry into force of this Agreement as well as acts amending such acts;

(b) Article 11(4) TEU, Articles 20(2)(b), 22 and the first paragraph of Article 24 TFEU and paragraph of Article 24 TFEU and acts adopted on the basis of those provisions;

There are rules about what is included in the scope of UK obligations, and what is excluded from the scope of those obligations. The rule about inclusion appears as a proposed Article in a footnote to this paragraph in the Commission proposal; I have adapted it and inserted it as the text of the ‘Common Provisions’ above.

As for exclusions, sub-paragraph 1(a) keeps the UK’s existing opt outs from the single currency, Schengen, Justice and Home Affairs (JHA) law and enhanced cooperation (a system where some Member States go ahead and adopt EU law without the others), except where the UK opted in to EU laws in these areas before Brexit day. The JHA exclusion reflects the final sentence of para 13 of the negotiation directives; the other exclusions are not mentioned in those directives.

There is no opt-out from Treaty amendments, although no such amendment is planned at present. It is odd that the text does not exclude the UK from ‘permanent structured cooperation’ in the area of defence, given that the UK decided to opt out when most Member States decided to trigger that process recently.

Sub-paragraph 1(a) excludes the Treaty rules and legislation related to the European citizens’ initiative (on that process, see the case law discussed here) and also voting and standing for office in the European Parliament and local government. There is a need for a transitional clause to deal with the situation of those EU27 citizens who were elected to local government in the UK (and vice versa) before Brexit day.

Conversely other EU citizenship provisions will logically still apply. This includes the “Ruiz Zambrano” case law on UK citizen children with non-EU parents, which I discussed here.

2. Should an agreement between the Union and the United Kingdom governing their future relationship in the area of the Common Foreign and Security Policy and the Common Security and Defence Policy become applicable during the transition period, Chapter 2 of Title V of the TEU and the acts adopted on the basis of those provisions shall cease to apply to the United Kingdom from the date of entry into force of that agreement.

This is the one field where the proposal contemplates an early end to the transitional period. By contrast, the UK Prime Minister’s Florence speech referred to the possibility of ending the transitional (or ‘implementation’) period early for a number of issues at different times. An early end to the transition period in this field would avoid the awkward situation where the UK becomes bound by foreign policy measures which it could have vetoed if it were a Member State. It would also end a possibility for linking defence issues to trade issues, although the policy in the Florence speech was not to insist upon such a link.

This proposed clause is partly consistent with a statement adopted by the Council when it adopted the negotiation directives. However, that statement also referred to the “fight against terrorism and international crime”, which are JHA issues. Legally it is questionable whether the UK and EU would actually be constrained by the withdrawal agreement if they wanted to sign a treaty replacing these rules in other fields of EU law during the transition period.

3. During the transition period, the Union law applicable pursuant to paragraph 1 shall deploy in respect of and in the United Kingdom the same legal effects as those which it deploys within the Union and shall be interpreted and applied in accordance with the same methods and general principles as those applicable within the Union.

This proposed para transposes para 14 of the Council negotiation directives, which refer explicitly to the direct effect and supremacy of EU law.

4. The United Kingdom shall not participate in any enhanced cooperation:

(a) in relation to which authorisation has been granted on or after the date of entry into force of this Agreement; or

(b) within the framework of which no acts have been adopted before the date of entry into force of this Agreement.

This paragraph is not reflected in the Council negotiation directives. It is particularly relevant to the proposal on the financial transaction tax, which is subject to the enhanced cooperation process (without UK participation) but where there is no agreement yet (see more on the background to the tax proposal here). If this para is agreed, the suggestion that the UK might somehow become bound as such by the tax during the transition period is therefore, as things stand, frankly scaremongering. There is a risk that the tax would have some extraterritorial effect upon the City of London, but that risk would equally exist if the UK were still a Member State, since it could not veto an enhanced cooperation measure that it was not participating in.

5. In relation to acts adopted pursuant to Title V of Part III of the TFEU by which the United Kingdom is bound before the date of entry into force of this Agreement, Article 5 of Protocol (No 19) on the Schengen acquis integrated into the framework of the European Union and Article 4a of Protocol (No 21) on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice shall continue to apply during the transition period. The United Kingdom shall, however, not have the right of opt-in provided for in those Protocols to measures other than those referred to in Article 4a of Protocol No 21.

This paragraph is reflected in the fourth sentence of para 13 of the Council negotiation directives. It means that the UK can opt in to new JHA laws amending JHA laws which it is already bound by. Note that the UK has already opted out of the ‘Dublin IV’ proposal on allocation of asylum seekers, so the suggestion that it could be bound by that law during the transitional period is pure scaremongering.

6. Unless otherwise provided in this Part, during the transition period, any reference to Member States in the Union law applicable pursuant to paragraph 1 shall be understood as including the United Kingdom.

However, where acts of the Union provide for the participation of Member States, nationals of Member States or natural or legal person residing or established in a Member State in an information exchange, procedure or programme and where such participation would grant access to sensitive information that a third country or natural or legal person residing or established in a third country is not to have knowledge of, these references to Member States shall be understood as not including the United Kingdom.

The first sub-paragraph reflects the second sentence of para 13 of the Council negotiation directives. However, the second sub-paragraph does not reflect those directives. It seems that the Commission is concerned that the UK might hand information over to non-EU countries without authorisation.



Article X+2

Institutional arrangements

1. Notwithstanding Article X+1, during the transition period [points (a), (b) and (c) of Article NN from the Common Provisions] shall apply.

See the text of ‘Article NN’, discussed above. As a reminder, this Article removes the UK from the EU institutions and other bodies.

2. For the purposes of the Treaties, during the transition period, the parliament of the United Kingdom shall not be considered to be a national parliament.

This sub-paragraph does not explicitly reflect anything in the Council negotiation directives. However, it arguably is implicit that if the UK is not part of the EU institutions, there is no requirement to consult the UK’s national parliament on proposed EU measures. But even if there is no longer a legal obligation to do so, it is hard to see what harm would be caused by consulting the UK parliament, or what legal rule would prevent the EU agreeing to do so outside the context of the formal role for national parliaments of Member States set out in the Treaties.

3. For the purposes of Articles 282 and 283 TFEU and of Protocol (No 4) on the Statute of the European system of central banks and of the European Central Bank, during the transition period, the Bank of England shall not be considered to be a national central bank.

This sub-paragraph does not explicitly reflect anything in the Council negotiation directives. However, it arguably is implicit that if the UK is not part of the EU institutions, it follows that the Bank of England does not have the status of a national central bank in its relations with the ECB.

4. By way of derogation from paragraph 1, during the transition period, representatives or experts of the United Kingdom, or experts designated by the United Kingdom, may, upon invitation and on an case-by-case basis, exceptionally attend meetings or parts of meetings of the committees referred to in Article 3(2) of Regulation (EU) No 182/2011 of the European Parliament and of the Council, of Commission expert groups, of other similar entities, or of bodies, offices or agencies where and when representatives or experts of the Member States or experts designated by Member States take part, provided that one the following conditions is fulfilled:

(a) the discussion concerns individual acts to be addressed during the transition period to the United Kingdom or to natural or legal persons residing or established in the United Kingdom;

(b) the presence of the United Kingdom is necessary and in the interest of the Union, in particular for the effective implementation of Union law during the transition period.

During such meetings or parts of meetings, the representatives or experts of the United Kingdom or experts designated by it shall have no voting rights and their presence shall be limited to the specific agenda points that fulfil the conditions set out in point (a) or (b). In the invitation to be sent to representatives or experts of the United Kingdom or to experts appointed or designated by it, the chair of the meeting concerned shall clearly identify the agenda points for which their attendance is allowed.

The first half of this sub-paragraph reflects para 19 of the Council negotiation directives, and the second half elaborates upon that rule. Note that a statement by the Commission commits itself to issue a guidance document on how to apply this rule consistently in practice.

A footnote refers to the official publication of Regulation 182/2011, which sets out general rules for Member States’ participation in committees which govern the Commission’s use of implementing powers.

As in the rest of this Article and Article NN, it is questionable whether it is really necessary to limit the UK’s purely consultative role to this extent. Certainly there is only a weak argument that it is legally required.

5. During the transition period, the United Kingdom shall not act as leading authority for risk assessments, examinations, approvals and authorisation procedures provided for in Union law.

This sub-paragraph does not explicitly reflect anything in the Council negotiation directives. It is not so obviously implicit that the UK’s exclusion from the EU institutions means that it cannot have a role as lead authority in risk assessment et al. Put another way, this is arguably an issue of EU substantive law – where the UK will in effect remain a Member State during the transition period – rather than EU institutional law, where it will not.

Article X+3

Specific arrangements relating to the Union's external action

1. Without prejudice to Article X+1(2), during the transition period, the United Kingdom shall be bound by the obligations stemming from the international agreements concluded by the Union, or by Member States acting on its behalf, or by the Union and its Member States acting jointly.

2. During the transition period, representatives of the United Kingdom shall not participate in the work of any bodies set up by international agreements concluded by the Union, or by Member States acting on its behalf, or by the Union and its Member States acting jointly.

These two paragraphs transpose para 17 of the Council negotiation directives. They entail the UK still being bound to the EU as regards treaties with non-EU states. Logically this applies vice versa and it would be preferable to spell that out directly. It should follow that individuals can still invoke the direct effect of such treaties (where it exists) in the UK during the transition period (for instance, Turkish citizens with rights under the EU/Turkey association agreement framework).

However, the UK is not bound to non-EU countries to apply such treaties; neither can non-EU countries directly invoke such treaties against the UK.  Since this could in particular affect UK exports, it makes sense for the UK to focus on replicating such treaties: see para 4 below.

3. In accordance with the principle of sincere cooperation, the United Kingdom shall abstain, during the transition period, from any action or initiative which is likely to be prejudicial to the Union's interests in the framework of any international organisation, agency, conference or forum of which the United Kingdom is a party in its own right.

This paragraph is not reflected in the Council negotiation directives. It explicitly sets out the obligation that would anyway arguably still apply implicitly, since other EU Treaty provisions on sincere cooperation would still be applicable to the UK. Note that the UK would presumably have more freedom to act once any early post-Brexit treaty on EU/UK security and defence cooperation came into force (see Article X+1(2) above).

4. During the transition period, the United Kingdom may not become bound by international agreements entered into in its own capacity in the areas of exclusive competence of the Union, unless authorised to do so by the Union.

This para transposes the wording of the final sentence of para 16 of the Council’s negotiation directives, with the important change that it only applies to ‘exclusive’ competence of the EU. This change narrows the limits on the UK’s external action. Note that the exact extent of exclusivity of EU competence is often disputed and even litigated.

Some discussion of the transition period suggests that the UK would be banned from signing treaties, but this is false: rather the UK could do so, but only with authorisation, and that limit would only apply within the area of exclusive EU competence. Also, note that the restriction is on the UK becoming ‘bound by’ international treaties during the transition period, not upon negotiation or signing such treaties. However, it might be argued that such negotiations would breach para 3 of this Article, although the obvious counter-argument from the UK would be that a treaty which does not apply until after the transition period could not affect the Union’s interests given that the UK will no longer be bound by EU law as such after that point.

There is no mention of the process of approval of the UK becoming bound by treaties. Note that one of the statements attached to the Council negotiation Directives says that the Council will approve the UK becoming bound by such treaties, in accordance with the usual Treaty rules. 

5. Without prejudice to Article X+1(2), whenever there is a requirement for coordination, including on sanctions policy, or representation in international organisations or conferences, the United Kingdom may be consulted by the Commission or the High Representative of the Union for Foreign Affairs and Security Policy, as the case may be, on a case-by-case basis.

This para is not reflected in the Council’s negotiation directives. It takes account of the UK’s significant foreign policy rule, in particular regarding sanctions. It’s conceivable, due to the loss of the UK veto over EU foreign policy during the transition period, that the UK could be legally bound to use (or not to use) its Security Council veto during the transition period.   As with para 3, in the foreign policy context the UK would presumably have more freedom to act once any early post-Brexit treaty on EU/UK security and defence cooperation came into force (see Article X+1(2) above).

6 During the transition period, the United Kingdom shall not provide commanders of civilian operations, heads of mission, operation commanders or force commanders for missions or operations conducted under Articles 42 to 44 TEU, nor shall it provide the operational headquarters for such missions or operations. During the transition period, the United Kingdom shall not provide the head of any operational actions under Article 28 TEU.

This para is not reflected in the Council’s negotiation directives, although it is consistent with the overall thrust of removing the UK from roles in EU bodies.

Article X+4

Specific arrangements relating to Fisheries Policy

As regards the fixing of fishing opportunities within the meaning of Article 43 TFEU for any period prior to the end of the transition period, the United Kingdom shall be consulted by the Commission during the decision-making process within the Council and during international negotiations in respect of the fishing opportunities related to the United Kingdom.

This reflects para 21 of the Council negotiation Directives, which states that “Specific consultations should also be foreseen with regard to the fixing of fishing opportunities (total allowable catches) during the transition period, in full respect of the Union acquis.”. If the transition period ends as proposed at the end of 2020, this would only be relevant for one year.

Article X+5

Supervision and enforcement

During the transition period, the institutions, bodies, offices and agencies of the Union shall have the powers conferred upon them by Union law also in relation to the United Kingdom and natural and legal persons residing or established in the United Kingdom. In particular, the Court of Justice of the European Union shall have jurisdiction as provided for in the Treaties.

This reflects the first sentence of para 18 of the Council negotiation Directives, but leaves out the second sentence, which reads: “In particular, Union institutions, bodies and agencies should conduct all supervision and control proceedings foreseen by Union law.”

That brings us to the most controversial part of this proposal: there is a footnote 4 here which states as follows: “In addition, the Governance and Dispute Settlement Part of the Withdrawal Agreement should provide for a mechanism allowing the Union to suspend certain benefits deriving for the United Kingdom from participation in the internal market where it considers that referring the matter to the Court of Justice of the European Union would not bring in appropriate time the necessary remedies.Since there is no suggested text of this clause, I have not inserted this point separately into this proposed draft of the agreement.

While sanctions in general are common remedies for breaches of treaties in international law, and the disapplication of some provisions of an agreement is common in EU treaties with non-EU states in particular, this specific suggestion in the context of the withdrawal agreement negotiations is highly legally and politically problematic.

As a matter of principle, this approach is contradictory: the Commission thinks that the UK should be a Member State fully covered by the Treaties, plus a special rule ought to apply which is similar to those in international treaties in which non-EU countries have a more distant relationship with the EU. On the contrary: substantive status quo membership should mean substantive status quo membership.

Moreover, this issue is not referred to in the Council negotiation directives; in fact, creating such a special rule contradicts the position in those directives that the EU institutions shall have their normal enforcement role. Arguably it also interferes with the ‘essential nature’ of the jurisdiction of the ECJ, contradicting the rule in ECJ case law on its jurisdiction in treaties with non-EU countries. The argument about timing of ECJ action is unconvincing, since the Commission can ask for interim measures in ECJ proceedings, and the deadlines to apply many of the laws concerned would fall after the end of the transition period. While the UK could presumably challenge the legality of any sanctions decision in the EU courts, as this proposal does not limit the UK’s standing to sue EU institutions during the transition period, the issue is whether such a power should exist in the first place.

Furthermore, the footnote makes no reference to the dispute settlement process that would usually precede such a sanction, or to the limits on the proportionality of such measures found in treaties such as the EEA. The suggestion ignores the careful balance found in the EEA, where partial disapplication of the Treaty could only follow a decision by Norway et al not to apply a new law within the scope of the EEA; but there is no such potential power to refuse to apply a new EU law foreseen for the UK.  It is not clear whether the proposed sanction would only apply to breaches of the transitional rules (and if so, which), or to other parts of the withdrawal agreement too.

The proposal is then not only legally and politically questionable, but poorly thought out and justified, not only breaching the Commission’s obligations as EU negotiator but also spreading ill will in the negotiations. The phrase “frolic of the Commission’s own” scarcely does justice to the problematic nature of this proposal.

Article X+6

European Schools

The United Kingdom shall be bound by the Convention defining the Statute of the European Schools until the end of the school year that is ongoing at the end of the transition period.

There is a footnote referring to the text of the Convention. This issue was not referred to in the Council negotiation Directives.

Tuesday, 6 February 2018

What’s next for acquired rights of EU27 and UK citizens? Anticipating the draft Brexit withdrawal agreement






Professor Steve Peers, University of Essex*

*Text based on my presentation to the European Parliament, 1 February 2018

While attention during the Brexit talks has been focussed on the two sides’ negotiation positions, and on the measure of agreement reached so far (notably the December joint report, discussed further here), in the long term the most important text on EU and UK citizens’ acquired rights after Brexit will be the withdrawal agreement itself – assuming it is agreed and ratified. Once a draft withdrawal agreement is produced (which is reportedly likely soon) we can offer a ‘running commentary’ on it, but in the meantime here are some thoughts about what to look for.

First of all, there are a number of substantive points which are unclear or left for future discussion in the joint report. Most notably, the joint technical note agreed in December refers to further discussion on: the further free movement rights of UK citizens living in the EU27; the recognition of post-Brexit qualifications; future healthcare arrangements (such as the EHIC card for UK citizens who visit the EU after Brexit, and vice versa); lawyers practicing under home state title; and posted workers.

The joint report is unclear as regards the personal scope of the agreement, in particular those who have moved to another Member State and returned to their Member State of nationality (for instance, UK citizens who moved from the UK to Ireland and back, or Dutch citizens who moved to the UK then back to the Netherlands), and those who have rights based on EU citizenship as distinct from free movement (UK citizen children with a non-EU parent; or EU27 citizens elected to local government before Brexit day, and their UK counterparts in EU27 states).

Some crucial points are referred to only vaguely. For instance, many UK commitments (waiving the obligation to have CSI, or comprehensive sickness insurance, among others), are addressed by cross-reference to a UK government document. But if this document is not made legally binding, the UK’s commitments cannot be ensured. The UK quite rightly wants commitments about its future relationship with the EU to be drawn up and linked to the withdrawal agreement; the same should apply to future treatment of EU27 citizens in the UK. In either case, such a legal link would respect the obligation in Article 50 TEU to take account of the ‘future framework’ for UK/EU relations. Furthermore, in light of questionable UK intentions regarding protection of EU27 citizens’ personal data, the withdrawal agreement should contain special safeguards ensuring the application of EU law on this issue.

Secondly, there are issues of enforcement. The joint report includes agreement on issues relating to courts and the legal effect of the rules, but expressly leaves open for further discussion the role of the ‘independent national authority’ designed to form part of the process of securing EU27 citizens’ acquired rights in the UK. It will have a role ‘monitoring’ those rights, but what does this mean exactly?

There are three key issues here: the body’s independence, powers and resources. Whatever powers it has, its independence is crucial: this body should not be a sinecure for dodgy donors or controversialist cabinet cronies (cf the botched appointment of Toby Young to the university regulator).  The appointees need both genuine expertise in the field and detachment from the government.  Perhaps the best way forward is to define the required ‘independence’ by reference to the CJEU case law on the very strong degree of independence required of data protection authorities.

This brings us neatly to the issue of powers. There are several possible models for the powers which such an authority might wield. One is the EU Commission model, already copied for other non-EU states by the EFTA Surveillance Authority. Among its other tasks, the Commission can receive complaints about botched application of EU law by Member States. It then enters into a dialogue with them and, if it decides it is necessary and merited, brings an infringement proceeding before the EU courts to determine if the complaint is well-founded. If the Member State arguably fails to apply the first binding judgment, the Commission can sue it again, asking the CJEU to impose a fine upon that Member State to sanction it for prior and continuing non-compliance with the first judgment. However, the Commission has political discretion as regards this procedure: for instance, it has not pressed forward with a complaint that the UK has wrongly applied the CSI requirement for EU27 citizens in the UK.

Another model is that of data protection authorities (DPAs), whose current powers will be bolstered by the new General Data Protection Regulation, which must be applied by May this year. Among other powers, DPAs can not only receive complaints from individuals but act on them directly, deciding if governments or private companies have violated data protection law and ordering a remedy. If the complainant thinks the DPA hasn’t acted properly on the complaint, he can challenge them in court (for example, see Schrems I). So can the government or company which is found by a DPA to have breached data protection law (for example, see Google Spain).

Furthermore, another possibility is that of an ombudsman, who can hear complaints from individuals and enter into dialogue with the authorities, but without powers to make decisions or bring court challenges. A stronger variant of this is an equality or human rights commission, which can in some cases go to court on behalf of an individual complainant or seek more general judicial review of changes in national law. This is quite similar to the EU Commission model, and indeed such bodies already exist in the UK.

This latter possibility brings us to the third issue – that of resources. There’s been a huge cut in funding to and staffing of the UK’s Equality and Human Rights Commission, so it could not adequately deal with an important new task like defending the rights of EU27 citizens without these changes being partially reversed, in particular allowing for the hiring of new staff with expertise in this field. 

These issues aren’t just relevant to the protection of UK citizens’ rights in the EU27. The joint report assumes that the Commission will monitor the rights of UK citizens in the EU27 in conformity with EU law, but in practice the Commission rarely sues Member States for their misapplication of EU treaties with non-EU countries, and as noted already, the case law gives the Commission political discretion in this area. The joint report expects the UK to change its law to ensure protection of EU27 citizens’ acquired rights, and what’s sauce for the goose is sauce for the gander. So the withdrawal agreement should also allow for judicial review of Commission decisions on complaints by UK citizens about EU27 governments applying the withdrawal agreement. This would not change the ‘essential character’ of the Commission’s powers (a rule stemming from CJEU external relations case law), since similar review is possible as regards Commission decisions not to pursue (for instance) state aid or competition law complaints.

Yet there’s another dimension to the issue of enforcement. What if the complaints against the UK or an EU27 government fail in the courts, but there is still concern that the withdrawal agreement is being breached? In that case the issue could be addressed pursuant to the ‘governance’ provisions of the withdrawal agreement, which have yet to be agreed. Whatever the mechanics of dispute settlement, however, the role of the individual will be an issue. Will the individual have the right to make a complaint to the EU Commission or the UK government about violation of the treaty by the other side? (WTO law does allow companies to initiate comparable complaints to governments about international trade rules). If so, what happens next? Can a refusal to act, or a settlement, be challenged? Does the complainant have any right to know about what then happens during the dispute settlement process?

The issues of EU27 and UK citizens’ acquired rights may end up being overlooked by disputes over the Irish border – where the text of the political fudge in the joint report is difficult for lawyers to look at. But these issues are nevertheless central to the day-to-day lives of the millions who moved before Brexit day, and cannot simply be forgotten.

Barnard & Peers: chapter 27

Image credit: European Parliament

Monday, 5 February 2018

Data Retention is still here to stay, for now…









Matthew White, Ph.D candidate, Sheffield Hallam University.



Introduction



On 30 January 2018, human rights NGO Liberty tweeted that the:






This was in reference to the Court of Appeal’s (CoA) judgment in Tom Watson and Others v Secretary of State for the Home Department [2018] EWCA Civ 70 with regards to access to communications data under the Data Retention and Investigatory Power Act 2014 (DRIPA 2014). Many regard this as a ruling the Snoopers Charter or mass surveillance as unlawful. This post critically analyses the CoA’s judgment with regards to general data retention, access to communications data on the basis of prior review by a court or an independent administrative body and notifications.



Background



The background to this case dates from 2014 in which the Court of Justice of the European Union (CJEU) in Joined Cases C293/12 and C594/12, Digital Rights Ireland (analysis here) invalidated Directive 2006/24/EC (the Data Retention Directive (DRD)) for its incompatibility with Articles 7 (privacy) and 8 (data protection) of the Charter of Fundamental Rights (CFR). This led to the introduction of DRIPA 2014, and subsequent challenges in the High Court (HC) and CoA on its compatibility with Digital Rights Ireland, which ultimately led to a preliminary reference (joined by a reference in Tele2 from a Swedish Court) to the CJEU for clarification (analysis here). In Joined Cases C-203/15 and C-698/15, Tele2 and Watson the CJEU ruled that Articles 7, 8, 11 (freedom of expression) and 52(1) (limitations of rights) preclude Member States from adopting laws which permit the general and indiscriminate retention ‘of all traffic and location data of all subscribers and registered users relating to all means of electronic communication’ [134(1)]. The CJEU also ruled that the access to retained communications data should be subject to prior review by a court or an independent administrative body and only on the basis of fighting serious crime [134(2)].



Court of Appeal’s judgment



In the leading judgment, Lord Lloyd-Jones summarises the background to this case [1-3] (also see above), and quickly distinguishes between the Swedish reference and its own in highlighting that the CJEU’s answers in paragraph 134(2) and (3) reflect their reference. His Lordship does so by highlighting the difference between UK and Swedish legislation [4]. His Lordship also highlighted several developments since Tele2 and Watson, namely that DRIPA 2014 had been repealed and replaced by the Investigatory Powers Act 2016 (IPA 2016), which is also subject to challenge, with Privacy International seeking to clarify the extent in which the CJEU’s ruling applies in the national security context (analysis here) and the UK Government seeking to amend the IPA 2016 to conform with the CJEU’s ruling with regards to serious crime and prior review for access by a court/independent administrative body [6].



The question before the CoA was again DRIPA 2014’s compatibility with the CJEU’s rulings on data retention [7]. Both parties and the CoA agreed that the CJEU’s jurisprudence establishes access to retained communications data is restricted to the objective of fighting serious crime and that access should be subject to prior review by a court/independent administrative body [9]. The CoA declined to grant any declaratory relief with regards the CJEU’s rulings in the national security context as this was already subject to a preliminary reference by the Investigatory Powers Tribunal (IPT) [10-12]. The CoA, did however, grant declaratory relief with regards to DRIPA 2014 for being inconsistent with European Union (EU) law with regards to serious crime and access to communications data [13].



With regards to data being retained within the EU, the CoA declined to make a definitive statement on the hope that the CJEU will clarify the matter with regards to the IPT’s reference [14-19]. Watson et al urged the CoA to declare that DRIPA 2014 had failed to make provisions for ex post facto notifications [20]. The CoA, however, declined for three reasons: a) it was not previously an issue in the national proceedings; b) it was not in the CJEU’s ratio in Tele2 and Watson; and c) the CJEU will in any event consider this based on the IPT’s reference.



On the issue of the relationship between data to be retained, and the threat to public security, Lord Lloyd-Jones initially intended to grant declaratory relief on the grounds that DRIPA 2014 did not contain any limitations to comply with the CJEU’s ruling, but declined to do so [22-24]. Lord Lloyd-Jones recalled three reasons as to why this was justified:



First, it was not argued that DRIPA 2014 was unlawful because it did not require there to be an identifiable public whose data was likely to reveal direct or indirect links to serious crimes. The CJEU’s ruling on general data retention was in response to the Swedish legislation. The High Court in Davis and Others v Secretary of State for the Home Department and Others [2015] EWHC 2092 felt that the CJEU (in Digital Rights Ireland) could not have meant general data retention was unlawful, only that adequate safeguards had to be in place for access.

Second, the CJEU’s reasoning on general data retention reflects Swedish law’s catch all (all services, data and users) data retention, and the analysis and conclusions cannot be automatically applied to DRIPA 2014. Third, this is a live issue which is pending for a February hearing.



Thus, the CoA unanimously held that DRIPA 2014 was inconsistent with EU law for not limiting data retention for the purposes of fighting serious crime and access to said data was not subject to prior review by an independent administrative body [27].  



Was the Swedish Court’s question on blanket indiscriminate data retention not applicable in the UK context?



This post has highlighted how throughout this judgment, the CoA consistently held that the prohibition of general data retention does not automatically apply to DRIPA 2014, because the answer from the CJEU was in response to a reference from a Swedish court asking about Swedish legislation. This premise acts on the assumption that DRIPA 2014 could not permit general data retention. This requires closer scrutiny. It must first be noted, that when the CJEU made its ruling, it highlighted its ruling applied to national legislation, thus, contrary to what the CoA seem to suggest, this does not directly apply only to Sweden, but to all EU Member States implementing data retention legislation.



When the CJEU ruled that blanket indiscriminate data retention of all services, all users and all data (catch all) was not permissible under EU law, I highlighted that this would have made a power found within cl.1 of the draft Communications Data Bill (dCDB) unlawful (Matthew White, ‘Protection by Judicial Oversight, or an Oversight in Protection?’ (2017) Journal of Information Rights, Policy, and Practice 2:1, 24). This was due to the fact that cl.1 contained the same power that the Swedish reference was seeking to clarify, a catch all power.



Section 1(2)(a) and (b) of DRIPA 2014 and s.87(a) and (b) of the IPA 2016 must be considered together. Both sets of powers allowed or allows retention notices to be issued on a (public) telecommunications operator or any description of operators to retain all data or any description of data. I had previously argued that Tele2 and Watson may prove unproblematic for such powers because there was discretion on which telecommunications operators could be obligated to retain and what data they could retain (26). I further pointed out, due to the CJEU’s insistence on geographical data retention in Tele2 and Watson [111] (which in and of itself is problematic for human rights protection (36, 37)) it could be argued, the ability to require retention would not be based on operator, but by location and therefore, could require a variety of operators to retain in a given area (26). These are the sorts of arguments I would assume could be invoked by the Home Secretary if need be.



However, I also noted that ‘it is still theoretically possible for all operators in the UK to be required to retain all data of users and subscribers’ (26) because retention notices apply to any description of operators to retain all or any description of data. This could be considered a general obligation because it could affect all telecommunications operators and then be classed as a general obligation. Lord Kerr in his dissenting opinion in Beghal v Director of Public Prosecutions [2015] UKSC 49 noted that it ‘is the potential reach of the power rather than its actual use by which its legality must be judged [102].’ Instead of a catch all power like cl.1 of the dCDB or Swedish law, the powers in DRIPA 2014 and the IPA 2016 would be a power that can catch all. When considering DRIPA 2014, the HC in Davis and Others came to the same conclusion where they noted that:



Mr Eadie accepted that the consequence of this policy stance is that we should test the validity of DRIPA on the assumption that the retention notices issued under it may be as broad in scope as the statute permits, namely a direction to each CSP to retain all communications data for a period of 12 months. The case was argued on both sides on that basis. We shall refer in this judgment to a system under which the State may require CSPs to retain all communications data for a period as a "general retention regime" [65].



One could challenge this reasoning on account of it matters not whether the contents of a retention notice are known because it’s the power in question that is tested. This is precisely the position of the European Court of Human Rights (ECtHR) with regards to secret surveillance. In Roman Zakharov v Russia (ECHR, 4 December 2015) the ECtHR’s Grand Chamber (GC) clarified its position on when an individual can claim to be a victim of a violation under Article 8 (private and family life, home and correspondence) of the European Convention of Human Rights (ECHR). The GC maintained that an applicant can claim to be a victim by the mere existence of secret surveillance measures for example, where ‘legislation directly affects all users of communication services by instituting a system where any person can have his or her communications intercepted’ [171]. The GC continued that, when such surveillance cannot be verified, the menace of surveillance itself can interfere with the Article 8 rights of all users and potential users [ibid]. In summary, the GC clarified its jurisprudence where it has been consistently ruled that it is what the law permits that can be subject to challenge, not the actual use of the law (unless argued by the applicants).



For the reasons highlighted above, it is argued that the CoA are playing semantics with the powers found within Swedish legislation, and the powers found within DRIPA 2014, as they permit the same thing, namely all operators, data and users can be affected by data retention. Therefore, the CoA’s reliance on the CJEU’s position on general data retention only applied to and reflected Swedish law is untenable.



The CoA also relied upon the HC’s interpretation of Digital Rights Ireland in Davis and Others that the CJEU ruled that general data retention would only be lawful if appropriate safeguards were in place. This is ironic considering the CoA disagreed with this position in Secretary of State for the Home Department v Davis MP and Others [2015] EWCA Civ 1185 [90]. What is also striking, is that, unless the CoA have invented a TARDIS to prevent the CJEU’s judgment in Tele2 and Watson from occurring, they seem to rely on the HC’s position prior to Tele2 and Watson. Simply put, in 2015, the HC did not believe the CJEU meant general data retention was unlawful in and of itself, in 2016, the CJEU said, ‘Yes, we did, so we shall say it again.’ Thus, for the CoA to rely on what is best described as an outdated HC position is at best, ignorant and at worst, disingenuous.



The final reason on part of the CoA is also unconvincing. They declined on the basis that Part 4 of the IPA 2016 is under challenge and thus would not be privy to evidence of both sides. This is despite the operational case for data retention being in the public domain, and the counter arguments relatively easy to find. The position the CoA took allowed it to sidestep the real issue, whether general data retention is compatible with human rights. General data retention has never been compatible with human rights since at least 2008 when the ECtHR GC in S and Marper App nos. 30562/04 and 30566/04 (ECHR, 4 December 2008) ruled that general data retention, even on a specific group of individuals (suspects and convicts) violated Article 8. Tele2 and Watson (despite its many flaws 24, 34-41) is just the next logical step with regards to communications data.



Prior Review by a Court or Independent Administrative Body



The finding that DRIPA 2014 was inconsistent with EU law for not prescribing prior review by a court or an independent administrative body for access to communications data is to be welcomed. This is not a criticism of the CoA’s finding per se, but a criticism of the idea that this safeguard remedies the problems caused by data retention. Part 4 of the IPA 2016 allows retention notices to be approved by Judicial Commissioners (JC) under s.89. This mechanism has already been criticised because JC will only act based on the Secretary of State’s conclusions, there is no obligation for the Secretary of State to make a full and frank disclosure of their evidence for retention (thus can be misled), they can only make an assessment on judicial review principles (thus not a merit based or human rights review), nor are they institutionally independent from the Investigatory Powers Commission (IPC) (28-32).



Another problem is that the JC can authorise data retention that can catch all. As the GC in Roman Zakharov noted:



[T]he implementation in practice of measures of secret surveillance of communications is not open to scrutiny by the individuals concerned or the public at large, it would be contrary to the rule of law for the legal discretion granted to the executive or to a judge to be expressed in terms of an unfettered power [230].  



The power to retain in DRIPA 2014 and IPA 2016 are virtually unfettered, even if it applies to a single telecommunications operator, and even if this power was authorised by a judge (37-39). Essentially, giving a judge the power to authorise retention or access would only be sufficient based on what they can authorise to be retained or accessed. If this power is unfettered, it matters not if the judge increases the independence of the authorisation process. Thus, despite the CoA’s finding, DRIPA 2014 would still be in violation of fundamental rights.



Lack of notification was already incompatible with the European Convention on Human Rights



In declining to grant declaratory relief with regards to notification, it can be argued that the CoA have failed under their obligations under s.6 of the Human Rights Act 1998 (HRA 1998) to act in a way that is compatible with the ECHR. With regards to notifications, the ECtHR in Association for European Integration and Human Rights and Ekimdzhiev v Bulgaria App no. 62540/00 (ECHR, 28 June 2007) found that Bulgarian law violated Article 8 and 13 (effective remedy) for not having a notification system. The ECtHR noted that ‘as soon as notification can be made without jeopardising the purpose of the surveillance after its termination, information should be provided to the persons concerned’ [90]. Boeham and de Hert note that the ‘clear recognition of an (active) notification duty after surveillance measures have ended in the Ekimdzhiev v. Bulgaria case constitutes a remarkable development in the framework of the safeguards against abuse which are necessary in surveillance cases’ (Franziska Boehm and Paul de Hert, ‘Notification, an important safeguard against the improper use of surveillance - finally recognized in case law and EU law’ (2012) 3:3 European Journal of Law and Technology).



The position of the ECtHR was reaffirmed in Roman Zakharov [287], but reference was made to UK law in that there is an alternative to notification i.e. IPT jurisdiction [234, 288], however, I have previously referred to doubts raised by Boehm and de Hert which is worth quoting in full. Boehm and de Hert questioned whether UK law was ‘capable of responding to the challenges arising out of the use of new surveillance techniques’ (Franziska Boehm and Paul de Hert, The rights of notification after surveillance is over: ready for recognition? (Yearbook of the Digital Enlightenment Forum, IOS Press 2012), pp. 19-39, 37).



Boehm and de Hert continue that in light of powers such as data retention and ‘fishing expeditions’ that target a greater number of people without suspicion, a notification duty appears to be an effective tool to prevent abuse (ibid, 37-8). Finally, Boehm and de Hert note that the Belgian Constitutional Court has now adopted the notification principle as a requirement to comply with Article 8 (ibid, 38).



Thus, whether or not CJEU requires notification, this justification can be found within the jurisprudence of the ECHR. Boehm and de Hert’s approach would be consistent with this jurisprudence of the ECHR in terms of it being a living instrument ‘which must be interpreted in the light of present-day conditions and of the ideas prevailing in democratic [73]’ in that mass surveillance would deprive the:






The IPA 2016 does contain a notification process under s.231, but this is wholly inadequate as it quite plainly admits, that a violation of the ECHR is not sufficient in and of itself to justify a notification. This could be any ECHR right, not just a breach of privacy, data protection or freedom of expression, but the right to life (Article 2), freedom from torture (Article 3) etc. This would render s.231 at the very least, in violation of Article 8 and 13 (39-40). Granted, this was not argued before the CoA, it remains that this was an opportunity where the CoA could have used existing case law to find that DRIPA 2014 had in fact breached human rights, with or without any consideration for EU law and the principles set out in Tele2 and Watson.



Conclusions


In an amazing display of legal gymnastics, the CoA avoided the most central issue in the data retention debate, the compatibility of general data retention with fundamental rights. The CoA did so by not acknowledging that DRIPA 2014 did and the IPA 2016 now allows general data retention. Instead, the CoA relied upon the semantics of distinguishing a catch all power, and a power that can catch all, which of course, in any event, amount to the same thing. In finding that DRIPA 2014 was only unlawful insofar as it lacked prior review by a court/independent administrative body to access communications data and that this was not restricted to serious crime overlooks the central issue of this data being retained the first place. It is one thing the ensure greater independence with regards to the authorisation of surveillance measures, but is another thing to overlook what those authorisations allow, whether it be the retention or access of communications data. To do so would simply polish a turd, rather than flush it, as general data retention has always been a turd that has needed flushing since at least 2008. Although the question of data retention within the IPA 2016 is subject to judicial review before the HC, the CoA had the opportunity to faithfully apply Tele2 and Watson to DRIPA 2014, but instead of addressing the issue, it acted as though the issue did not exist.



Barnard & Peers: chapter II:7

Art credit: Lightning Broadband