MinBane

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Brexit: Another future exit report with wishful thinking considering the role of CJEU post-Brexit!

The Tories-DUP Government released today yet another report, this report was on enforcement and disputes arising between the Her Majesties Government (HM Government) and the European Union (EU). As of when the United Kingdom abandon it’s membership status to become a non-member of the EU. The Brexit Minister David Davis clearly has lack of vision or trying to take the easy way out. Since the UK government has delivered nothing else, than wishful, we want it as today. So when I went into reading this, it was as expected. It is like the Tories doesn’t care about it or wanting to define what they want as they are going out of the EU. Here some of favorite quotes from today’s report.

As we exit the EU, the UK wants to agree an orderly withdrawal and establish a new, deep and special partnership with the EU. The UK has also made clear that in order to avoid any cliff-edge as we move from our current relationship to our future partnership, people and businesses in both the UK and the EU would benefit from an interim period, where this is necessary for the smooth and orderly implementation of new arrangements” (…) “The success of the future partnership will depend on mutual respect. We will be starting from a strong position: our shared commitment to upholding the rule of law and to meeting our international obligations, and our intention to comply with the agreements reached between us, are not in doubt” (HM Government, P: 3, 2017).

In agreements between the EU and third countries, where cooperation is facilitated through replicating language which is identical in substance to EU law, these agreements can specify that account is to be taken of CJEU decisions when interpreting those concepts. This is relevant where both parties agree that divergence in interpretation would be undesirable, for example, for operational reasons such as continued close cooperation with EU agencies” (…) “The value of such arrangements lie where there is a shared interest in reducing or eliminating divergence in how specific aspects of an agreement with the EU are implemented in the EU and the third country respectively. The extent to which this approach may be valuable depends on the extent to which there is agreement that divergence should be avoided in specific areas” (HM Government, P: 9, 2017).

In international agreements, final remedies are principally retaliatory in nature and implemented unilaterally by the parties. This includes the ability to take safeguard measures to mitigate any negative effects from the other party’s noncompliance as well as the option to suspend all or part of the agreement (or several linked agreements), or, ultimately, withdraw from the agreement (or several linked agreements). The ability of the European Commission and the CJEU within the EU legal system to impose sanctions, such as fines for non-compliance with EU rules, is exceptional” (…) “The agreements governing the UK’s withdrawal from, and future partnership with, the EU will cover a broad range of areas of cooperation. Those agreements should set out clear means by which the terms of the agreements should be implemented and enforced within the UK and the EU. They should also establish a mechanism for the resolution of disputes concerning those agreements” (HM Government, P: 11-12, 2017).

The Court of Justice of the European Union (CJEU) and the United Kingdom, this relationship will get into another position after the withdrawal from the EU. Since the legal disputes will be different between UK and EU, as the membership are now ceased. The UK might have some legal framework between them and the EU.

That EU and UK wants a mutual respect, they both want that. This paper actually states: In agreements between the EU and third countries, where cooperation is facilitated through replicating language which is identical in substance to EU law, these agreements can specify that account is to be taken of CJEU decisions when interpreting those concepts. This is relevant where both parties agree that divergence in interpretation would be undesirable, for example, for operational reasons such as continued close cooperation with EU agencies” (HM Government, 2017).

This specific passage says in essence, that the UK wants to be facilitated and replicating the legal language of the EU, so they can cooperate with EU law, even after leaving. So that it will in general stay much as the same. The concepts and the parties will agree, so they also will function directly with the EU agencies. So the UK want an agreement that fits directly to EU law. This is countering the independence and the mindset of a “hard” Brexit, more like smoothing their system to the EU. The Remains must be jolly, that yet another paper, the HM Government are working for more of the same. Not really changing the status, but wishing for a similar system of today. That means dispute and laws would work in sync with agencies and the CJEU. Which is impressive!

Clearly, the UK want a special mechanism to be sufficient between them, as their new cooperative spirit starts after the withdrawal, but the EU will have a new agreement and a new non Member State who wants to trade, follow procedure and the jurisdiction. This means the UK and the EU needs a new function to fix disputes and legal remedies between the non-members and the EU. The UK are afraid of the EU possible sanctions, as the powers of CJEU are powerful towards to third countries, which means the UK could be sanctioned in a way that haven’t in the past. That is why the UK want to consider a legal language in sync with the EU, so they will follow the EU, even when they are outside the EU. That means a pretty soft, compared to what the Brexit wanted to be. Peace.

Reference:

HM Government – ‘Enforcement and dispute resolution – A FUTURE PARTNERSHIP PAPER’ (23.08.2017)

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