The Post-Brexit European Union
It has taken close to four years for the final outcome of that period in the progress of the European Union (EU) legal order, which forever will be referred to as "Brexit", to be revealed. The Withdrawal Agreement (WA) that was concluded in October 2019 will continue for some years to govern certain aspects of the relationship between the EU and the UK. However, it was not until 24 December 2020 when the Trade and Cooperation Agreement (TCA) was finalised that the parties to the agreement were able to articulate the nature of the future relationship between the UK and EU Member States; declaring that, having withdrawn from the EU, the UK’s status as of 1 January 2021 is that of “an independent coastal State with corresponding rights and obligations under international law” (TCA: 7 and 408-9).
Arranged in seven parts, the intention is that the TCA will be renewed every five years (TCA: 402) and will apply to any new State that joins the European Union (TCA: 406). This commentary post identifies from the TCA (and, where applicable, the WA) the salient features of a post-Brexit European Union.
The Suis Generis Legal Order
Despite the upheavals caused by Brexit, the EU retains its suis generis character. The species of individual rights and the decentralised enforcement mechanism deriving from the landmark case of Van Gend en Loos [1963] remain unique to the EU, and, except insofar as the enforcement of the WA is concerned, form no part of the package of rights which the UK secured through the Article 50 negotiations.. EU Treaty provisions and other forms of EU legislation accord rights to private individuals and corporations, as well as to Member States, which are enforceable within the domestic court systems of the Member States. These features have enabled the EU to assert that its legal form is distinct from a mere international agreement.
The difficulty that the EU has in conceiving of these rights outside of the confines of its legal order directly bore on the question of EU citizenship post-Brexit. Union citizenship is arguably one of the most valuable of the species of individual rights which Van Gend en Loos gave birth to. Indeed, in 2001, the Court of Justice of the European Union (CJEU) concluded that citizenship was the fundamental status from which all rights of nationals of EU Member States - most notably the right to move to and reside in other Member States - would flow (Rudy Grzelczyk). Right from the outset of the Article 50 negotiations, the EU dismissed the possibility that Union citizenship could be decoupled from Union membership. Instead, the WA enables UK nationals who exercised their free movement rights in EU states and EU nationals who exercised those rights in the UK before 31 December 2020 (the end of the WA transition period) to retain these and associated rights. Such a limited outcome was not inevitable - for if citizenship rights can be lost en masse - as seems now to be the legal position - they could have been subjected to a negotiated compromise - as has been the case with other elements of the EU’s architecture. The outcome, rather, reflects the EU’s allegiance to the unique constitutional form which is expressed, inter alia, through Union citizenship.
It follows that the TCA is all but silent on the rights of private individuals. When it is not purely focused on the interests of the State signatories to the agreement, the rights of “natural persons” are seen to be of relevance only to the extent that they serve the interests of the “legal persons” (business organisations) whose rights are within its scope.
The “Four Freedoms” of the EU Internal Market
With the exception of the free movement of persons - a subset of the individual rights which go to the heart of the EU’s constitutional form (as discussed above) - the terms of the TCA suggest that, contrary to the EU’s assertion, the internal market is a highly negotiable commodity. On the precedent of the UK, a departing Member State can expect to take away, relatively intact, three of the famed “four freedoms”.
Part two of the TCA ((Trade, Transport, Fisheries and other arrangements: 18-281) covers, among other things, the movement of goods, services and capital. In essence, this part of the TCA adjusts the principles governing several established areas of EU competence to the minimum extent necessary to acknowledge both the determination on the part of the EU and UK to engineer a new relationship (TCA: 6) and the reality that the new relationship, in and of itself, cannot serve to unravel the parties inextricably intertwined market, labour standards and social assistance infrastructures. Those unaware of the extent to which CJEU jurisprudence governing the free movement of goods, services and capital has increasingly favoured state autonomy/discretion over the question of whether regulatory norms that would impede free movement are a justified and proportionate means of addressing key issues of concern to Member States are likely to view the detail in this part with considerable alarm. However, the core principles that underpin the jurisprudence on the free movement of goods, services and capital, - such as non-discrimination and, subject to Member State “mandatory requirements”, regulatory cooperation and alignment - have been imported into the TCA.
The TCA and EU Law
It was not until five years after the entry into force of the Treaty of Rome (Treaty Establishing the European Economic Community) that Member States were advised that what they had thought was a classic international agreement, enforceable by State signatories only, was in fact: “.a new legal order of international law...the subjects of which comprise not only member states but also their nationals” (Van Gend en Loos 1963). Perhaps it was with this history in mind that part one of the TCA (Common and Institutional Provisions: 9-17) provides that “nothing in this Agreement or any supplementing agreement shall be construed as conferring rights or imposing obligations on persons other than those created between the Parties under public international law, nor as permitting this Agreement or any supplementing agreement to be directly invoked in the domestic legal systems of the Parties” (TCA: 10).
An even more effective means of depressing the interpretive pretensions of a potential CJEU mark 2 is found in part six of the TCA (Dispute Settlement and Horizontal Provisions: 383-401). Whilst the WA retains the jurisdiction of the CJEU in some spheres (including its limited rules governing citizenship rights), with the exception of the areas of activity covered by part five (Participation in Union Programmes, Sound Financial Management and Financial Provisions: 365-382), disputes over the application of the TCA will not be assigned to the supervisory jurisdiction of a judicial authority with anything like the creative weight of a final court. Instead, the preferred dispute settlement method is the “soft law” approach that arbitration offers.
So, does the entry into force of the TCA signal the effective end of debates over the status of the UK under EU law? Article 50 dictates that the journey of a Member State towards political independence must be a legal one. The UK commenced this journey on 29 March 2017 when it initiated the Article 50 withdrawal process. Since that date, a number of decisions and agreements have been made in connection with one or other of the three paragraphs of which Article 50 is composed. As at the time of writing, few of these decisions and agreements have earned the scrutiny of the CJEU. Among the questions of EU law which have arisen from the application of this short but, as we now know, highly potent Treaty Article is the status of the transition period which commenced on 31 January 2020 and ended on 31 December 2020. Article 50 is entirely silent on a device which resulted in the UK apparently leaving the EU on two separate occasions and which certainly taxed several commentators in their efforts to find the words and phrases that would convincingly explain how a Member State could be simultaneously outside the EU and bound by the EU Treaty framework. This question will almost certainly be debated in law schools. It is not inconceivable that it may reach the CJEU.
Twenty-seven Member States remain in the EU, and any one of them might in future choose to invoke Article 50. What the Brexit years reveal about the meaning and scope of Article 50 is therefore far from academic for those internal to the EU. As regards the UK, secure in the knowledge that the Commission, Parliament and Council of the EU, as well as the EU Member States (acting through the European Council), have endorsed the various stages of its withdrawal, it has little reason to pay any regard to the indisputable fact that the question of whether a Member State has validly withdrawn from the EU is a question of EU law on which the CJEU alone is competent to decide.
References
Agreement on the Withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community, 2019/C 384 1/01.
https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:12019W/TXT(01).
Case C-184/99 Rudy Grzelczyk [2001] ECR 1-6193.
Case 26/62 Van Gend en Loos [1963] ECR 1.
Trade and Cooperation Agreement Between the European Union and the European Atomic Energy Community of the One Part and the United Kingdom of Great Britain and Northern Ireland of the Other Part, 24 December 2020.
Treaty Establishing the European Economic Community, 25 March 1957, 294 U.N.T.S. 3.