On 20 July 2017 it became clear that the European Commission and in particular its chief negotiator, Michel Barnier, is becoming frustrated with the United Kingdom and its lack of preparation. In order to make progress, both sides need to know the positions and proposals of the other. The EU has done this, through various policy papers, it’s now the UK’s turn, seemed to be the implication. In the joint press conference Michel Barnier called for clarification on the UK’s understanding of its financial obligations in any separation agreement and how it may be calculated. Without this, there is, Barnier implied, little point in continuing to discuss on this issue. The so-called ‘Brexit Bill’ was the issue in need of clarification most stressed by Barnier but he also flagged to the lack of detail on Northern Ireland and the Common Travel Area and the issue of disentangling current legal arrangements.
On the issue of citizens’ rights the problem seemed to be not so much the lack of proposals from the UK but with the proposals themselves and in particular the vexed issue of the jurisdiction of the Court of Justice. There are certainly differences on the substantive question of what rights individuals will retain and the extent to which those rights will develop over time (for an excellent analysis of the UK’s position including a comparison with the EU’s proposals see Stephanie Reynolds at https://livrepository.liverpool.ac.uk/3008428/). However, a significant, if not the main bone of contention seems to be around the nature of those right and the in particular their means of enforcement; namely the role, if any, of the Court of Justice of the European Union (CJEU). Two remarks of Barnier today point towards the reasons why this issue appears so important for the Commission, one to do with citizenship and the other to do with the underlying principles of the legal order of the Union.
In his opening statement Barnier mentioned that this is a question of guaranteeing future rights of citizens and that this only seems possible with the involvement of the Court of Justice. While a banal enough statement, the issue of the role of the Court of Justice and in particular the guaranteeing of legacy citizens’ rights by the Court of Justice point to a broader point about the nature of Union citizenship and fundamental divergences between the EU and the UK regarding the nature of whatever legacy citizenship status emerges from these negotiations. Union citizenship is a transnational citizenship that guarantees rights in other Member States, it can therefore be characterised as a migration status. However, if it is to be understood in such a manner, it must be acknowledged that it is a supercharged migration status, and one that has a quasi-constitutional character. There are two major differences between Union citizenship rights and a classic migration status; quantitative and qualitative. On the one hand the range of rights that Union citizens enjoy, to residence, work, equal treatment etc, are exceptionally broad and can over time approach those of citizenship itself. On the other hand, not only are the rights extended to Union citizenship of a considerable range, but they are guaranteed not by the national legal system but by a supranational legal system with its own system of enforcement and moreover one that enjoys primacy over national law. It therefore is a quasi-constitutional status, guaranteed by an external legal order and one that, in contrast to other forms of migration, escapes the control of the national political authorities. Subject to some significant differences, the UK and the EU appear to have some level of agreement on the first issue, namely the extent of rights to be afforded Union citizens.
Where the deep disagreement lies is in relation to the second issue; the nature of that status and the extent to which it will be guaranteed by a supranational legal order and interpreted by the Court of Justice or whether instead it will evolve into a more classic migration status within the domestic legal order, albeit one guaranteed by an international legal agreement. The EU, it would appear, wishes to maintain it as a supranational legal status within EU law and this is the only means by which it feels those rights can be guaranteed into the future. The UK on the other hand would appear to want the position of legal citizens to be subsumed into the UK legal order and dealt with under UK law and subject to possible changes (changes that would leave the UK in breach of its international agreements but about which the UK courts as far as I am aware, as operating in a dualist legal system, would be unable to do anything). A compromise might be some form of independent dispute resolution mechanism with an ad hoc tribunal comprising of EU and UK members. Aside from issues as to whether this would in fact ‘guarantee’ to a sufficient extent citizens’ rights, issues that would have to be addressed in its composition and its operation (including the extent to which its determinations would be binding on UK courts), this solution may be problematic under EU constitutional law.
And this points to the second issue regarding the role of the Court of Justice. Replying to a question during the press conference on whether the role of the Court of Justice was a red line issue for the EU, the Commissioner alluded to the EU’s reasoning on this issue. The issue was a question of EU law and it is the Court of Justice that interprets EU law. This is not a political point he underlined, it was a legal point. While the Commissioner did not elaborate further, it is possible that he was alluding to a fundamental principle of the Union legal order that has been underlined by the Court of Justice on a number of occasions when dealing with international agreements; the unity and autonomy of the Union legal order and the role of the Court of Justice in guaranteeing that unity and autonomy. EU law must be interpreted in a uniform manner and in order to achieve that there must be a single authoritative interpreter of that law, namely the Court of Justice. Otherwise divergences and inconsistencies could emerge within the law. In its judgments in Opinions 1/91, 2/94 and 2/2014, the Court rejected EU accession agreements to the European Economic Area (EEA) and the European Convention on Human Rights (ECHR) precisely because they gave authority to interpret EU law to other, non-EU courts to which the EU would be bound. That, for the Court, would compromise the unity and autonomy of the EU’s legal order and was unacceptable and the EU was constitutionally prevented from signing up to both agreements. With reference to the citizens’ rights issue, Barnier pointed out that EU law is interpreted by the Court of Justice and repeatedly underlined that caselaw of the Court of Justice forms part of that law. The simple fact may be that if the withdrawal agreement is EU law (a large ‘if’) and rights afforded legacy citizens are EU rights, the jurisdiction of the Court of Justice may be necessary to ensure the uniformity and autonomy of that law, especially if the same law is to apply to UK nationals in the 27. Indeed if this is correct, it is difficult to see the possibility of even a dispute resolution panel being acceptable to the Court of Justice, if in its deliberations it will be deciding on EU law and binding on the Court of Justice.
The European Union is a creature of law. The sooner the UK understands that and approaches the negotiations with that understanding in mind the sooner it will be possible for solutions to emerge and the negotiations to progress. This has two dimensions: a general one and a more specific one. On a general level, the EU and its officials work though legal concepts and are conditioned to approach issues from this point of view, perhaps as much as from a political perspective. The UK needs to understand that there are very real legal issues at play and legal constraints under which these negotiations must be played out. On a more specific level, not only is the EU a legalistic organisation, but in the legal world it is a very particular legal organisation; it has its own law, principles, legal order and legal culture. The UK needs to appreciate this internal EU law perspective in order to understand why certain issues are so important to the EU and why the EU is adopting the approach it is. The supranationally guaranteed nature of EU rights is one of those principles, as is the role of the Court of Justice in its interpretation, a role linked to the uniformity and autonomy of the Union’s legal order. Both of these principles and issues come together in the issue of citizens’ rights. It is a supranationally guaranteed status, not subject to national control and discretion; the EU wants to keep legacy citizenship as close as possible to that ideal whereas the UK seems to wish to move it to a more classic status of migration. Secondly, if it is a question of EU law and EU rights, the EU will insist, and indeed is constitutionally obliged to ensure, that it is the Court of Justice that occupies the position of authoritative interpreter of those rights and that law. It is not some form of power grab or judicial imperialism that is prompting the EU to take such a stance on citizens’ rights but rather flows from the nature of EU citizenship and indeed the nature of the EU legal order. Indeed it is hard to imagine a solution in conformity with EU law that does not involve the Court in some manner, which is probably why the Commission is waiting to see if the UK has any ideas on the issue.