Newington’s Tiffany Burrows summarises the much discussed UK EU position paper on enforcement and dispute resolution.

The Department for Exiting the European Union (DExEU) published a further Future Partnership Paper, outlining the Government’s position on how the future relationship between the UK and the EU can be monitored and implemented after the direct jurisdiction of the Court of Justice of the European Union (CJEU) comes to an end when the UK withdraws from the EU. The paper also sets out how any disputes which arise can be resolved.

The Government cites the UK’s objectives as:

• maximising certainty for individuals and businesses;
• ensuring that they can effectively enforce their rights in a timely way;
• respecting the autonomy of EU law and UK legal systems while taking control of UK laws; and
• continuing to respect the UK’s international obligations.

Key provisions

Enforcement

“In both the UK and the EU, individuals and businesses will be able to enforce rights and obligations within the legal orders of the UK and EU respectively”

• Put simply, the domestic implementation of agreements between the UK and the EU will take place in the UK’s domestic legal system, and vice versa if an issue arises within EU member states.
• The UK will work with the EU to determine the design of an interim period. This will allow for arrangements such as judicial supervision and the potential models outlined below to be implemented effectively.

Dispute resolution

The UK Government asserts that establishing a new partnership with the EU will “require a new dispute resolution mechanism to address any disagreements between the UK and the EU on interpretation or application” of its new agreement. The scenarios that the UK Government envisages disputes are around: implementation of an agreement (such as any future UK-EU free trade agreement); subsequent actions such as legislation deemed incompatible with obligations; and divergence in interpretation in the respective courts.

Key elements of the paper to draw out include:

“There is no precedent, and indeed no imperative driven by EU, UK or international law, which demands that enforcement or dispute resolution of future UK-EU agreements falls under the jurisdiction of the CJEU”

• This point is directed at the EU’s negotiating team to counter the suggestion of keeping the CJEU (informally known as the European Court of Justice or the ECJ) as the principal authority to both enforce international agreements and settle disputes.
• The Government references existing legal precedent as the justification for its position, but also makes clear that this position, should it be officially adopted by the EU in negotiations, is neither fair nor neutral.

“The appropriate dispute resolution mechanism is dependent on the substance and context of each agreement”

• The paper examines different existing international precedents for settling disputes, but does not indicate a preference, leaving this entirely open for debate and negotiation with its EU counterparts.
• The Government stresses that the models it explores (a joint committee; arbitration models; reporting and monitoring requirements; and references to pre and post-agreement CJEU decisions) in the paper are not mutually exclusive, and the mechanism that will be agreed could be an amalgamation of some of these options or different models could be used for different policy areas.

“One common feature of most international agreements… is that the courts of one party are not given direct jurisdiction over the other in order to resolve disputes between them”

• This again emphasises the UK’s position that the jurisdiction of the ECJ will not be the responsible body for resolving disputes between the UK and EU - the suggestion of a joint committee featuring representatives from both sides, reflects the UK’s desire to pursue a “deep and special partnership”.
• However, the paper outlines that there will not be a complete overhaul of ECJ case law and states that in the forthcoming Repeal Bill, pre-exit ECJ case law will be given the same binding, or precedent, status in UK courts.
• The paper leaves room for ECJ influence and rulings to apply indirectly through the dispute mechanisms decided upon, or if the UK choses to align certain policy areas with that of the EU in any trade agreement reached.

Analysis

This is the paper that confirms that the UK will “take back control” of our laws. It consistently makes clear that there is no precedent for one body (in this case, the ECJ) to oversee enforcement and especially dispute resolution. The technical language used is consistent with the rhetoric that ECJ will not have direct jurisdiction over domestic law.

However, the paper is less confrontational than previous Government positions, and seeks a more constructive tone, offering different options to be considered. The paper recognises that EU judges could still play a role in settling disputes, alongside British judges – a position that has seen the Prime Minister face accusations of a “climb down”.

The paper has been largely viewed as a sensible approach, and Justice Minister, lawyer and Brexiteer, Dominic Raab MP (Con, Esher and Walton) said the UK would “keep half an eye on the case law of the EU” after Brexit, and said it made sense for the EU to do the same.

European Commission spokesperson Alexander Winterstein responded to the paper by telling reporters: “You will not be surprised to hear me refraining from injecting myself into an intra-UK debate on their positions…our own position is very clear, is very transparent, and is unchanged.”

Next steps

A further Government position paper on data sharing was published today ahead of the next round of negotiations (on the week commencing 28 August) in preparation for the European Council summit in October.

If you would like to speak to Newington about how your business could best outline its position to the Government please get in touch with our dedicated Brexit team at [email protected] or call Lizzy Roberts on 020 7234 3332.