The latest position paper published by the Department for Exiting the EU is about much more than enforcement and dispute resolution. Rather, it is the UK accepting the inevitable: that a complex, new ’supranational’ EU-UK institutional structure is required to manage the future relationship. Although it reads like a non-committal overview of possible options, there is a clear focus on the most advanced forms of institutional integration currently in existence (other than the EU itself, of course).
Paragraph 27 is particularly important. It lists three scenarios where disputes may have to be resolved, the third being ’divergence’. It is smart politics to list that under avoiding disputes. In fact, avoiding divergence is key to ensuring legal coherence in highly integrated, though separate, legal orders (such as in the European Economic Area). Therefore the paper also refers to joint committees, technical working groups, and the like (31-34). In the EEA context, or in the EU-Swiss context, these are less about ’resolving disputes’, but about continuous consultation on future regulation – as well as (legally binding) joint decision-making.
Read together with the UK position paper on goods of 21 August, which asks for deep regulatory convergence and mutual recognition in goods, the present UK position paper seems to recognize that, inevitably, the EU-UK will need supranational institutions to manage that regulatory convergence.
Paragraphs 52-54 on supervision and monitoring buttress the idea that elaborate institutions will be needed. I read that to mean that post-Brexit, the European Commission could be replaced by a similar institution under a new name. That could be the EFTA surveillance authority, which can and does, bring infringement cases before the EFTA Court against Norway, Iceland and Liechtenstein for violating their EEA obligations. Legally, it is imperative to have such an institution to supervise the EU-UK legal relationship.
The UK paper also states that the doctrine of direct effect will cease to apply in the UK. Essentially, direct effect means that rights derived from the withdrawal agreement would be directly enforceable before UK and member states’ courts. The UK position paper thereby seems to refute a key EU demand that the provisions of the Withdrawal Agreement (i) on citizens’ rights, and (ii) enshrining the continued application of Union law would still benefit from direct effect (see point 1.3 of the 12 July 2017 position paper on governance). The third negotiation round will therefore be important: will the EU accept and concede to a different model to enforce EU citizens’ rights in the UK post-Brexit?
Overall, I think this paper has the seeds of a compromise on the CJEU. Together with the request for deep regulatory convergence on Monday, it seems that a soft EEA-style Brexit is not off the books.
Bart Van Vooren is a senior lawyer in Covington’s Brexit Task Force.