« And because there is unlikely to be a protocol in which EU rules are not included at all, both sides must find a way to accommodate the CJEU under this agreement. » The purpose of this blog post is twofold: first, to describe the various issues for which the CJEU will remain competent after the UK`s withdrawal from the EU; and, second, to argue that it is doubtful whether the arbitration mechanism is compatible with EU law. Ending the case law of the CJEU has always been a difficult task for British negotiators if they wanted EU-UK relations to be based on common rules (i.e. in EU practice). After all, Art. 19 TEU and 344 TFEU have been interpreted as establishing their exclusive competence to interpret EU law, at least in so far as it takes effect within the European Union (more on this below). Given that the Withdrawal Agreement provides for a standstill period – during which the United Kingdom, as a Member State, will be subject to Union law in everything but name – and a `single customs territory` on the basis of Union law for the post-transition period, unless there is a free trade agreement that would avoid a hard border on the island of Ireland, would be close to a role for the CJEU with effect for the United Kingdom. impossible to avoid. « Ending the jurisdiction of the Court of Justice in the United Kingdom » was one of Theresa May`s famous red lines in the negotiations to leave the EU. And after the debate in the House of Commons on the 15th.
Judging by November, many MEPs believe that the draft Withdrawal Agreement (AO) has not respected it. This particular red line should always be a problem for the prime minister: after all, the UK`s obligation to comply with certain EU rules (on citizens` rights, customs, etc.) would inevitably mean that the CJEU`s interpretations of those rules would have to be binding on the UK. It is therefore not surprising that the VA provides for the jurisdiction of the CJEU in various places; What is perhaps more surprising – and certainly a negotiating victory for the UK – is the EU`s concession to an arbitration mechanism to settle disputes between the parties over the interpretation of the VA. The second aspect concerns Articles 136 and 138 of the Peace Agreement and covers aspects of financial management agreed with the EU. The UK will continue to make payments to the EU under the VA after 31 December 2020. Infringement proceedings under Article 258 TFEU and requests for a preliminary ruling under Article 267 TFEU continue to apply to the United Kingdom. This will allow UK courts to ask questions of the CJEU on certain aspects of financial resolution (as set out in Articles 136 and 138 of the AO). It will also allow the European Commission to enforce the financial agreement before the CJEU. Should this be of concern to the parties to the agreement? No one has yet proposed to refer the VA to the ECJ under Article 218(11) TFEU; and in any case, the VA will not survive politically in the coming weeks.
But even after it enters into force, the CJEU would have the power to examine the compatibility of an EU international agreement with the treaties in question. Whether he will have the courage to demolish parts of it when there are so many political stakes is, of course, another question. Professor Phinnemore says: « Theoretically this is a possible alternative, but it would mean the creation of a separate court for Northern Ireland. » It interprets EU law at the request of national courts. An illustration of the system can be found in yesterday`s press release MEMO/18/6422. Isn`t this system very similar to EEE II (i.e. .dem existing EEA model) and therefore in order? I see some differences with the incompatible system of THE EEA I and the probably also incompatible model of the UPC, the ECHR II, etc., since the body (unlike the UPC, for example) will only apply its own agreement (which may contain parallel provisions as the EEA does), but not directly the regulations and other laws of the EU? I only wonder as part of the process of understanding the huge amounts of text and cross-references. However, that interpretation raises important constitutional problems under EU law, as it could be incompatible with the autonomy of the EU legal order. The autonomy of EU law – that is, it is an independent legal order – dates back to van Gend en Loos and finds its most fundamental expression – as regards the EU`s external relations – in Opinion 1/91 on the EEA Agreement. The CJEU ruled that it was generally permissible for an agreement concluded by the EU to provide for its own dispute settlement system, but that there were two specific limits if the agreement was based on Art.
19 TEU and 344 TFEU refer to and refer to the concepts of EU law: first, only the ECJ is in a position to determine the division of competences between the European Union and its Member States; and secondly, only the ECJ is competent to interpret EU law where that interpretation is binding in the EU or its Member States. .