The British government recommends setting up a special mechanism, independent of the European Court of Justice (ECJ), to settle disputes arising over interpretation and application of the agreement on the United Kingdom’s withdrawal from the European Union and future relations between the two sides after Brexit.
‘In leaving the European Union, we will bring about an end to the direct jurisdiction of the Court of Justice of the European Union (ECJ),’ wrote the British authorities on Wednesday 23 August in a negotiating document on respect of agreements signed when the UK leaves the EU, and solving related disputes. Anxious to establish a profound partnership with the EU post-Brexit, the British feel it will be necessary in the interest of both sides to set up new dispute-resolution mechanism.
Such disputes could arise if one party considers that the other has not properly implemented the agreement on its territory or a party feels that national regulations introduced after the Brexit agreement is signed fail to comply with the agreement, or divergence over the way in which the agreement, or implementing legislation is interpreted.
The British government has not taken a position on the nature of such a mechanism, but says that such a body is routinely part of the various international dispute settlement schemes in agreements signed by the EU itself and one party’s courts do not have direct legal jurisdiction over the other party.
London cites as an example the joint committees whose members are appointed in equal numbers by the parties to an international agreement, such as the one setting up the European Economic Area (EEA), or the arbitration panels laid down in the EU’s free trade agreements with Canada and Vietnam, whose decisions can be binding.
The United Kingdom feels that it would be best to separate implementation of future agreements with the EU from the settlement of disputes arising from said agreements. It considers, where necessary, issuing its own legislation on application of agreements signed with the EU, which would foresee appeals mechanisms in the UK’s legal system for EU individuals and companies which feel they have suffered damages.
‘UK individuals and businesses operating within the EU should similarly be provided with means to enforce their rights and obligations within the EU’s legal order and through the courts of the remaining twenty-seven Member States,’ says the British document.
Post-Brexit impact of pre-Brexit case law
The British authorities recognise that ECJ case law issued before the date of Brexit will continue to have an impact in the UK.
The Repeal Bill (repealing the 1972 agreement to join the EU) ‘will give pre-exit ECJ case law the same binding, or precedent, status in UK courts as decisions of our own Supreme Court to ensure a smooth and orderly exit,’ explain the British.
Where an international agreement facilitates bilateral cooperation by replicating EU law, the two sides may agree that relevant future decisions of the ECJ should be taken into account in order to maintain close cooperation with the EU agencies. London says this should also apply to decisions taken by British courts.
Finally, Theresa May’s government does not rule out the introduction of a transition period to allow individuals and companies to adapt. During such a transition, the CJEU could have a role to play in the interpretation of law.
The negotiations between the United Kingdom and the EU in the run up to Brexit will resume in Brussels next week (see EUROPE 11845).
The British negotiating position on dispute settlement can be found at: http://bit.ly/2wxnFR9 (Original version in French by Mathieu Bion)