After the transition period, the CJEU will also receive another form of jurisdiction under the VA. If the UK and the EU do not agree on the interpretation and application of the VA and cannot resolve this dispute through consultation, an arbitration panel may be set up to resolve the dispute in a binding manner in accordance with Article 170 of the VA. Vague promises to regain control of our laws have suddenly become a very specific promise to end the jurisdiction of the CJEU in the UK. It has become a red line of the government. What provisions will there be if an agreement cannot be reached through a formal mechanism? Would this mean a suspension of part or all of the agreement between the UK and the EU (as provided for in a number of agreements between Switzerland and the EU) or simply the right to retaliate (as provided for in the Agreement on the European Economic Area)? The UK`s central argument is that there is no precedent and, indeed, no imperative under EU, UK or international law that requires that the application or settlement of disputes of future AGREEMENTS between the UK and the EU fall within the direct competence of the CJEU. Mr. Spisak says, “In a sensitive debate like this, it is useful to start from first principles. If there are EU rules in the protocol, whether now or in some sort of renegotiated agreement, it is simply inevitable that the CJEU will be an arbiter on those rules. Historically, of course, the aversion to foreign judges comes from Switzerland.
Before Switzerland`s accession to the European Convention on Human Rights (ECHR) in 1974 and before the vote on accession to the European Economic Area in 1992, the respective opponents argued that the European Court of Human Rights (“ECHR”) and the EFTA Court (planned) were “foreign” courts because they (would be) composed of non-Swiss judges. Reference was made to the Federal Charter of the Three Founding Cantons of 1291, which contains the obligation to recognize only local judges. However, the Zurich legal historian Clausdieter Schott has made it clear that the function of modern judges is not comparable to that of their medieval counterparts. While today`s judges judge, the medieval judge was excluded from the decision-making process. Only the college of aldermen was empowered to take a decision. The judge`s task, on the other hand, was to conduct the proceedings. Since aldermen were always members of the same “substantive cooperation” as the parties, a foreign judge could never be a problem. Schott also notes that the passage in question in the Federal Charter has been ignored for centuries and has only been rediscovered for political purposes in modern times. The aphorism is also not specifically Swiss. It merely expressed the plaintiff`s obligation to bring an action at the defendant`s home.
In other words, it described the development of a rule of general jurisdiction that still exists today. The use of the foreign judicial formula of the Federal Charter of 1291 as regards the ECtHR and the EFTA Court therefore constitutes a historical misrepresentation. If they want to completely ignore the CJEU, they still have the option of tearing up these two agreements and bearing the consequences. During the transition period, almost all EU rules will continue to apply to the UK. The jurisdiction of the CJEU in the UNITED Kingdom will also continue largely as it did when the United Kingdom was a member state. This means that during the transition period, the CJEU can rule on the following types of measures in which the UK is involved: the document distinguishes between the “application” of an agreement – the day-to-day responsibility for safeguarding the rights arising from the UK-EU agreement – which is argued as follows: that it should be exclusively a matter for the UK and EU institutions in their respective jurisdictions, and “dispute settlement” – a method of settling disputes between the UK and the EU on how the agreement will be implemented – where it sets out a number of different options. Article 86(1) of the Peace and Union Agreement specifies that all cases pending before the CJEU at the end of the transitional period fall within the competence of the CJEU until their closure. This includes decisions on appeals. Many have pointed to the inclusion of the word “direct” to argue that this is a British withdrawal or a reversal from the end of the CJEU`s jurisprudence. One alternative that has been proposed is the dispute settlement model used in the main withdrawal agreement with the EU and in the bilateral treaties that the EU has concluded with neighbouring countries such as Ukraine.
The agreement establishing the Protocol stipulates that EU representatives have the right to monitor its implementation and enforcement. While this paper presents a more nuanced analysis of alternative options than Theresa May`s insistence that Brexit will mean “the end of CJEU jurisprudence”, the document is clear that EU law will no longer have direct effect in the UK and that “the issue of the national implementation of agreements between the UK and the EU will be addressed throughout the UK`s national legal order”. It also states that the CJEU is responsible for ruling on questions of EU law in Northern Ireland. Finally, there are two aspects of the CJEU`s case law after the transition that are clearly addressed in the VA. First, in order to ensure that Part 2 is interpreted in the same way in the UK and the EU, uk courts retain the power to refer to the CJEU requests for a preliminary ruling on the meaning of an aspect of Part 2 of the WA for a period of eight years after the end of the transition period. Questions about the rights of EU citizens in the UK can therefore still be submitted to the CJEU at least until the end of 2028. The role the CJEU could play in a future deal between the UK and the EU is naturally what most commentators are focusing on. As others have noted, the UK would never function in a legal vacuum after Brexit. Uk courts will continue to keep an eye on developments in international law and other jurisdictions, and the UK has an interest in adapting to important international developments in various areas of law. “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.” This document is welcome because it shows that the British Government is seriously and thoughtfully looking at these issues, but it cannot tell us much about it. Until we know the scope and depth of the proposed agreements between the UK and the EU, it is impossible to know what impact this will have on the application and settlement of disputes.
Under the Withdrawal Agreement, the CJEU no longer has general competence for the UK in respect of acts performed on or after 1 January 2021. Whether he will play a role in monitoring future relationship agreements between the UK and the EU will depend on what is negotiated. One of the bone of contention in the Brexit negotiations was whether the CJEU should still play a role after the UK`s withdrawal from the EU. Brexiteers had promised to end the case law of the Court of Justice of the EU. They kept that promise with respect to the Trade and Cooperation Agreement (TCA). Any dispute arising out of this Agreement shall be settled by an arbitral tribunal composed of three members. The Withdrawal Agreement (AO), on the other hand, contains the so-called “Ukrainian mechanism”. Under Article 171 of the Withdrawal Agreement, a five-member “arbitral tribunal” has formal jurisdiction to rule on disputes between the EU and the UK. .