Ronan McCrea, Barrister and Senior Lecturer in Law at UCL, argues that the UK could be under the jurisidction of the European Court of Justice for longer than many Brexiteers may care to imagine. Any withdrawal agreement negotiated under Article 50 has to comply with the basic constitutional norms of the EU legal order, including fundamental rights. This could have significant implications for the UK’s negotiating position, as well as the status of EU citizens living in the UK.
Those concerned with protecting human rights have been vocal in their concern that the Brexit process will lead to a reduction in human rights protection in the UK. Indeed, part of the case presented to voters in favour of Brexit was that leaving the EU would allow the UK to be free of the duty to comply with the EU fundamental rights norms, including Charter of Fundamental Rights and the possibly expansionist interpretation of that Charter by the Court of Justice of the EU. As with so many elements of the impossibly multifaceted and tangled process of Brexit, the reality may be less clear cut. It is in fact likely that any deal concluded under Article 50 will be subject to a degree of obligation to comply with the rights contained in the Charter and the fundamental elements of EU law, and indeed, and obligation to satisfy the Court of Justice that such compliance has occurred.
Article 50 Agreements as Measures of EU Law
How can it be that the Article 50 procedure, through which the UK can exit the Union, could nevertheless produce an outcome that involves continuing obligations in respect of EU fundamental rights norms? As Article 50 has never been used before, there is a lack of precedents to rely on and a certain degree of doubt as to how things may play out. However, any deal between the UK and the EU concluded under Article 50 will be part of EU law. The Court of Justice clearly reaffirmed in Opinion 2/13, that agreements with third countries and international organisations are “binding upon the institutions of the EU and on its Member States, and would therefore form an integral part of EU law” (paragraph 180).
There is no doubt that the agreements under Article 50 are agreements between the Union and the departing state, not agreements between the remaining states and the departing state. The text of Article 50 provides that “the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union”. Though it did not attract much attention at the time, the introduction of Article 50 by the Lisbon Treaty has effectively expanded EU competence to cover the matter of departure from the Union and deprived the Member States of the option of dealing with this matter inter-governmentally. This means that EU law now governs the procedure by which such an agreement can be reached and there is no longer any doubt that the relevant agreement is one that will be made between the departing state and the Union, not the remaining states.
The negotiation process is similarly Union-centred. Article 50 specifies that the negotiation with the departing state will be that set out in Article 218(3) Treaty on the Functioning of the European Union which is the procedure used for agreements between the Union and third countries or international organisations. This procedure sets out a negotiating process under which the Council has the dominant role. The article states that the Council shall “authorize the opening of negotiations, adopt negotiating directives, authorize the signing of agreements and conclude them.”
The text of Article 50 provides further confirmation of the central role of EU institutions in this process stating that that the “shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament”.
There are a number of features of this process that suggest that compliance with EU fundamental rights norms will be a key element of any Article 50 deal. First, the fact that the deal needs to be approved by a Qualified Majority Vote rather than unanimity and requires the consent of the European Parliament both underscore that the agreement is an EU law measure.
Obligation for the Agreement to Respect EU Constitutional Norms
What is more, as an act of the Union, the agreement will be subject to the jurisdiction of the Court of Justice. The Court has the power to declare the agreement unlawful and prevent or annul any decision of the Council to ratify it should it be found to violate the basic constitutional norms of the EU legal order, including compliance with fundamental rights. The Court of Justice made this clear in its well-known ruling in Kadi where it held that: “the Community is based on the rule of law, inasmuch as neither its Member States nor its institutions can avoid review of the conformity of their acts with the basic constitutional charter, the EC Treaty, which established a complete system of legal remedies and procedures designed to enable the Court of Justice to review the legality of acts of the institutions.” (paragraph 281).
In the Kadi case the Court had to assess the compliance of EU legal measures adopted to give effect to a UN Security Council resolution. Even though the obligation to obey Security Council measures is amongst the most serious obligations in international law the Court of Justice was nevertheless clear that:
“the obligations imposed by an international agreement cannot have the effect of prejudicing the constitutional principles of the EC Treaty, which include the principle that all Community acts must respect fundamental rights, that respect constituting a condition of their lawfulness which it is for the Court to review in the framework of the complete system of legal remedies established by the Treaty.” (paragraph 285).
An agreement with the UK under Article 50, which will rank much lower in the pecking order of international law than the duty to comply with a Security Council resolutions will certainly be subject to review that is at least as intense (and most likely significantly more intense) than that applied by the Court of Justice in the Kadi case.
Indeed, any agreement with the UK concluded by the Union will be subject to review for compliance with the broader basic constitutional norms of the Union. This includes both the fundamental rights norms and the basic constitutional structures of the Union. The fact that the agreement with the UK under Article 50 will be a specific agreement will not enable it to remain lawful should it be found by the Court of Justice to violate the key elements of the EU legal order. In Opinion 2/13, the Court was willing to refuse permission for the ratification to the agreement providing for the accession of the EU to the European Convention on Human Rights even though a mandate for accession had been included in the Article 6 of the Treaty on European Union by the Lisbon Treaty. In doing so the Court made it clear both that all international agreements must respect the powers of the Court of Justice itself. It stated explicitly that all international agreements were required to safeguard “the essential character of [the Court’s] powers” and to avoid any “adverse effect” on the autonomy of the EU legal order” “the “specific characteristics and the autonomy of EU law” (paragraphs 183, 258).
The Court of Justice was, therefore, willing to overturn an agreement (the agreement on accession to the ECHR) that was the subject of a specific mandate within the Treaties because it felt that the agreement in question compromised the specific characteristics of EU law. Any agreement with the UK under Article 50 will be a sui generis agreement with a third party that is an EU law measure but which does not have the specific backing in a Treaty article that applied in the case of the the agreement on accession to the ECHR. It is therefore even more likely that the Court would be willing to overturn any agreement that it regards as compromising the fundamental norms of the EU legal system, including the “primacy unity and effectiveness of EU law” (Opinion 2/13, paragraph 188) and the protection of the fundamental rights recognized by the EU legal order (Kadi paragraph 285).
Indeed, it is likely that any agreement under Article 50 will not be seen as an amendment that qualifies the EU Treaties and will therefore have to be in conformity with those treaties more broadly. The Court was explicit in Opinion 2/13 that an international agreement cannot affect the “allocation of powers fixed by the Treaties” (paragraph 201). It is hard to see how the Court could take any other approach. After all, EU Treaties can only be amended by unanimous agreement of Member States. Were an agreement with a departing state under Article 50 to act so as to amend the Treaties in some way and to modify the obligations of the remaining states to each other under EU law, this would amount to a backdoor through which the highly valuable veto held by each Member State on Treaty change could be circumvented.
Methods of Challenging an Article 50 Argreement before the Court of Justice
The most likely means through which a withdrawal agreement under Article 50 could be challenged is by means of a referral of the agreement to the Court of Justice underArticle 218(11) of the Treaty on the Functioning of the European Union. Under this article, any Member State, the European Parliament, the Council and the Commission are all entitled under to seek the opinion of the Court of Justice “as to whether an agreement envisaged is compatible with the Treaties”. The same Article makes it clear what occurs if incompatibility is found between the proposed agreement and the Treaties: “Where the opinion of the Court is adverse, the agreement envisaged may not enter into force unless it is amended or the Treaties are revised”. Over the years, the opinions given under this procedure have been notable for the extremely protective approach adopted by the Court of Justice in relation to the principle of the autonomy of the EU legal order and to the protection of its own power to act as the supreme interpreter of EU law (see Opinions 1/76, 1/91, 1/09 and 2/13). If the Court’s opinion on the UK’s withdrawal agreement is adverse, either the agreement would be amended to satisfy the Court of Justice or the Treaties would have to be revised, a process that involves difficult and lengthy process of individual ratification by each Member State meaning that any state that had failed to block the original agreement (under the qualified majority voting procedure set down in Article 50) would hold a veto.
Though it is likely that an agreement as covering entirely new territory such as an agreement under Article 50 would be referred to the Court before ratification, it is also possible that the lawfulness of the implementing measures of an agreement could be challenged after ratification. Although agreements with third parties are regarded as an integral part of EU law, this does not render them immune from challenge on grounds of incompatibility with the constitutional norms of the Union. In Germany v Council the Court of Justice has annulled annulled a Council decision to ratify an agreement on grounds that the agreement in question violated a general principle of EU law (in this case non-discrimination). As noted above, in Kadi the Court of Justice was willing to annul the regulation giving effect to the asset freezing programme contained in Security Council resolutions notwithstanding that Member States were under an international legal obligation to give effect to the resolutions (though the judgment did allow to remain in force for three months to allow the Union to go back to the UN to seek adjustments to the programme that might meet the Court’s concerns). The Court explicitly stated in Kadi (paragarphs 285-289) that in reviewing the legality of EU acts giving effect to agreements with third countries it would be ruling on the legality of the implementing measures within EU law rather than the lawfulness of an agreement under international law. However, given that, as noted above, the Court is also clear that international obligations (such as an obligation on the part of the EU to give full effect to the withdrawal agreement with the UK) this obligation cannot prejudice the constitutional principles of EU law (Kadi, paragraph 285). This means that if the withdrawal agreement violates EU constitutional norms it will not generate enforceable rights within the EU’s legal system. In summary, the Court is perfectly willing to create a political problem for the Union and its Member States and to send them back to renegotiate an agreement they had already signed, by making it legally impossible to give effect within the EU legal order to an agreement entered into by the EU with a third country or international organisation.
These scenarios are not fanciful. A number of central European countries with large numbers of citizens working in the UK have taken a very hard line in relation to any proposals to limit free movement or to restrict the rights of EU nationals already living there. Should the UK manage to persuade a Qualified Majority of States to give greater ground to the UK on this issue it may well find that that resulting agreement is challenged before the Court of Justice by the more hardline minority. In such a challenge states that reject curtailment of the rights of EU citizens living in the UK could certainly raise the kind of arguments about potential violations of rights to respect for family and private life previously raised on this blog.
Hanging over all of this is the very rigid timetable imposed by the Treaty on withdrawal negotiations. Given that Article 50 lays out a restrictive timeframe for negotiations for the departure of a Member State to take place, should an agreement between the EU and the UK be found by the Court of Justice to violate EU fundamental rights or the fundamental elements of the EU legal order, the consequences could be grave. Article 50 provides that a two year count down is triggered by the giving of notice by the departing Member State. If no agreement is reached then the treaties “cease to apply” to that Member State once the two years are up. Even should negotiations go smoothly, it would take some time for an agreement to be finalized. Should the Court of Justice then rule that that agreement was unlawful the UK would be faced with negotiating a new deal in a very short timeframe, persuading all remaining States to extend time for negotiation (Article 50(3)), or facing a highly disruptive abrupt divorce where at the expiration of two years the UK loses all EU law rights including access to the Single Market.
As with so many elements of the Brexit process, the means by which the UK can attain what may have seemed rather clear objectives, are very unclear. Escaping from the control of the Court of Justice and avoiding the prospect of decisions of UK authorities being overturned on the basis that they violate EU fundamental rights norms was one of the key goals of those who supported Brexit. This could be achieved if the UK were willing to opt for the shockingly disruptive abrupt divorce from the EU where it unilaterally leaves and loses all the rights and duties of EU membership. However, such an option does not have majority political support and it appears that the UK will follow the established EU law procedure that it signed up to when it ratified the Lisbon Treaty and will trigger negotiations under the Article 50 procedure rather than unilaterally renouncing membership and the rights obligations it entails. Of course, walking away from all EU rights and duties may be the end result of negotiations under the Article 50 procedure but that seems to be an option that the government is keen to avoid. After all, if the UK authorities were content with walking away option, they would not need to invoke Article 50 at all but could walk away at the moment of their choosing. At the moment, the UK’s preferred outcome seems to be the conclusion of some kind of agreement with the Union under the Article 50 procedure that will minimize restrictions on access to the Single Market for UK businesses. This means that a clean break from the Luxembourg Court is not really an option. Compliance with EU fundamental rights, and indeed with the basic constitutional norms of the EU, will be part of any withdrawal agreement under Article 50.
Ronan McCrea is a Barrister and Senior Lecturer in law at University College London.
Note: The views expressed in this post are those of the author, and not of the UCL European Institute, nor of UCL.
This article first appeared on the blog of the UK Constitutional Law Association.