Withdrawal Agreement

2019 ◽  
pp. 322-324 ◽  
Author(s):  
Elspeth Guild ◽  
Steve Peers ◽  
Jonathan Tomkin
Keyword(s):  
European Union ◽  
Transition Period ◽  
Eu Law ◽  
The European Union ◽  
Court Of Justice ◽  
Legal Effect ◽  
The Common ◽  
The Uk

This concluding chapter studies the citizens’ rights set out in Part Two of the Brexit withdrawal agreement. There are also some relevant provisions in Part One, setting out the ‘Common Provisions’, and Part Six, containing the ‘Final Provisions’. The relevant Part One provisions include Article 4, which states that the withdrawal agreement has the same legal effect as EU law in the UK, including the principle of supremacy; that the Court of Justice of the European Union (CJEU) judgments up until the end of the transition period shall be binding; and that subsequent CJEU rulings are to be taken into account. Meanwhile, the last provisions in Part Two of the agreement refer to publicity about the acquired rights of citizens, permit more favourable provisions to be applied, and confirm that the agreement provides life-long protection for those covered by the scope of the provisions.

BENEFITS FOR EU CITIZENS: A U-TURN BY THE COURT OF JUSTICE?

2015 ◽  
Vol 74 (2) ◽  
pp. 195-198 ◽  
Author(s):  
Steve Peers
Keyword(s):  
European Union ◽  
Social Welfare ◽  
Member State ◽  
Eu Law ◽  
The European Union ◽  
Welfare Benefits ◽  
Court Of Justice ◽  
Uk Government ◽  
The Uk ◽  
The Eu

THE recent judgment of the Court of Justice of the European Union in the case of Dano (ECLI:EU:C:2014:2358) clarified some important points as regards access to social welfare benefits by EU citizens who move to another Member State. Furthermore, the judgment could have broad implications for any attempts by the UK Government to renegotiate the UK's membership of the EU, which is likely to focus on benefits for EU citizens coming to the UK. This note is an updated and expanded version of my analysis on the EU Law Analysis blog: http://eulawanalysis.blogspot.co.uk/2014/11/benefit-tourism-by-eu-citizens-cjeu.html.

scholarly journals Objective justification, less discriminatory alternatives, and the ‘Great Repeal Bill’

2017 ◽  
Vol 17 (3) ◽  
pp. 195-212
Author(s):  
Michael Connolly
Keyword(s):  
European Union ◽  
Eu Law ◽  
The European Union ◽  
Court Of Justice ◽  
Indirect Discrimination ◽  
Domestic Courts ◽  
Apparent Reason ◽  
The Uk ◽  
Domestic Law ◽  
The Eu

On the 13 July of this year, the UK Government published the European Union (Withdrawal) Bill, 1 more commonly called the ‘Great Repeal Bill’. Aside from the repeal of the European Communities Act 1972 (and with it the proposed ousting of the jurisdiction of the Court of Justice), the Bill’s purpose is to ‘convert the acquis’ of EU law and preserve any UK law implementing EU law.2 This will include ‘workers’ rights’ and with it their employment discrimination rights.3 The efficacy of such a move will be limited if the British judges fail to adopt the same interpretations of these rights as their counterparts in the Court of Justice in Luxembourg. Over the years of Britain’s membership, there have been many references to Luxembourg to clarify the meaning of particular aspects of the discrimination provisions, with the Court generally giving a more liberal interpretation than the domestic courts had suggested would be their preference. One element of the law largely untouched by this process is the objective justification defence to claims of indirect discrimination. This is because the domestic courts have maintained a fiction that their interpretation is consistent with the EU formula. For no apparent reason, the domestic courts have reworded the EU formula while labelling it as being no different. This presents a major challenge for the Bill. It would be all too easy for Parliament to assume all is well with this aspect of workers’ rights, especially when the judges tell them so. Using a handful of cases, this article exposes the shortfalls within the domestic law and suggests some solutions. It is not the purpose of this article to discuss the Bill (which no doubt is due for many amendments), but to focus on one important aspect of discrimination law, both pre- and post-Brexit.

scholarly journals A Knot Not to Be Cut? The Legacy of Brexit over the CJEU

2021 ◽  
Vol 9 (1) ◽  
pp. 27-36
Author(s):  
Marta Simoncini ◽  
Giuseppe Martinico
Keyword(s):  
European Union ◽  
Transition Period ◽  
The European Union ◽  
Advocate General ◽  
Court Of Justice ◽  
The Uk ◽  
The Impact ◽  
Structure And Activity ◽  
The Eu

What was the role of the Court of Justice of the European Union (CJEU) in the Brexit saga? And what will the impact of Brexit be over the future structure and activity of the CJEU? This article deals with this twofold question and explores three different issues. Firstly, we will offer a reflection on the questions and the risks raised by the Wightman case, where the CJEU ruled on the unilateral revocation of the UK notification of its intention to withdraw from the European Union under Art. 50 Treaty of the EU. Secondly, we will analyse the impact of Brexit on the composition of the CJEU and, particularly, the risks for the independence of the Court raised by the advanced termination of the mandate of the British Advocate General. Thirdly, we will provide some insights on the scope of the jurisdiction of the CJEU in the post-Brexit Union, emphasising how the Withdrawal Agreement maintained its jurisdiction during and even beyond the transition period. This article reflects the events that took place up to 6 October 2020.

The Mutual Judicial Influence of National Courts and the European Court of Justice through the Preliminary Rulings Mechanism

2020 ◽  
pp. 107-126
Author(s):  
Gráinne de Búrca
Keyword(s):  
European Union ◽  
Mutual Influence ◽  
Eu Law ◽  
The European Union ◽  
National Courts ◽  
Court Of Justice ◽  
Lack Of Information ◽  
European Court ◽  
The Moment ◽  
The Uk

Taking the moment of imminent UK exit from the European Union as an opportunity to reflect on the mutual influence of the Court of Justice of the European Union (CJEU) and the English courts, this chapter examines the 113 preliminary references made by the higher English courts over a 10-year period to investigate two related questions. These are: first, the extent to which the CJEU’s rulings have been implemented by the British courts, and second, the extent to which the interpretations proposed by the UK courts may have influenced the CJEU. On the first question, the chapter’s findings indicate that it is very difficult to assess the extent to which the preliminary rulings of the CJEU were implemented by the referring UK courts, given the remarkable lack of information available about what happens following a preliminary ruling of the Luxembourg Court. On the second question, the chapter’s findings suggest that in the substantial number of cases in which the British courts advanced a proposed interpretation of EU law, the CJEU adopted that interpretation in a majority of those cases. Hence, even though the CJEU has rarely acknowledged the influence of national referring courts on its rulings, the cases referred from the higher UK courts over the past decade suggest that instead of a one-way relationship in which British courts were subject to the overriding authority of the CJEU, there was a process of mutual influence in which the Luxembourg court more often than not adopted the interpretation of EU law proposed by the British court.

The Insolvency Regulation as an EU Legal Instrument

2016 ◽  
Author(s):  
Stuart Isaacs ◽  
Richard Brent
Keyword(s):  
European Union ◽  
Eu Law ◽  
The European Union ◽  
Legal Basis ◽  
General Application ◽  
Legal Instrument ◽  
Insolvency Regulation ◽  
Legal Effect ◽  
The Uk ◽  
The Eu

This chapter examines the legal attributes which the Insolvency Regulation has as an EU measure, through the Treaty on the Functioning of the European Union (TFEU), and describes the way in which it is to be understood as a matter of EU law in the UK. It also sets out the legal mechanisms established by the EU whereby solutions to questions of validity and interpretation may be obtained. Essentially, the TFEU governs the Regulation’s legal effect in the UK in many ways as it provides the legal basis for its adoption by the EU, and provides the purposive framework within which the Regulation is to be interpreted. Additionally, the TFEU also governs the Regulation’s three legal attributes: to have ‘general application’; to be ‘binding in their entirety’; and to be ‘directly applicable in all Member States’.

scholarly journals Brexit, the EU-UK Withdrawal Agreement, and Global Treaty (Re-)Negotiations

2020 ◽  
Vol 114 (3) ◽  
pp. 443-462
Author(s):  
Joris Larik
Keyword(s):  
European Union ◽  
International Law ◽  
Transition Period ◽  
The Novel ◽  
Eu Law ◽  
The European Union ◽  
International Treaty ◽  
The United Kingdom ◽  
The Uk ◽  
The Eu

AbstractThe withdrawal of the United Kingdom from the European Union has prompted a global recalibration of treaty relations. Due to the Withdrawal Agreement and its transition period, the UK is expanding its international treaty-making powers as it is gradually released from the constraints of EU law. Practice to date shows the creation of many new international legal instruments through which governments have sought to address the novel questions that Brexit raises for the international law of treaties.

scholarly journals The United Kingdom has spoken: The receding impact of European jurisprudence on the UK interpretation of the common VAT system

2020 ◽  
Vol 49 (1) ◽  
pp. 75-91
Author(s):  
Yige Zu ◽  
Richard Krever
Keyword(s):  
European Union ◽  
Value Added ◽  
Policy Outcomes ◽  
The European Union ◽  
The United Kingdom ◽  
Court Of Justice ◽  
The Subject ◽  
The Common ◽  
The Uk

Post-Brexit, UK law conforming to Directives of the European Union such as the value added tax (VAT) Directive will remain in effect and UK courts will be permitted to consider decisions of the Court of Justice of the European Union (CJEU) when interpreting that law. How UK common law courts, steeped in the tradition of the doctrine of precedent, will use CJEU judgments in the post-Brexit era has been the subject of much speculation. This article considers the question in the context of a case study, looking at the application by UK courts of CJEU decisions in an important area of VAT law, the treatment of customer loyalty plan benefits. The evidence suggests that, even prior to Brexit, UK courts had started to pursue a separate path, declining to follow CJEU precedents that yielded clearly inappropriate policy outcomes. If the results of the case study are replicated more widely in UK rulings, it can be expected that the influence of CJEU judgments may taper off where formalistic and literalist CJEU interpretations have led to outcomes inconsistent with the recognized policy intent of UK law.

Fighting for Authority: Strategic Actions of National High Courts in the European Union

2019 ◽  
Vol 12 (2-2019) ◽  
pp. 419-433
Author(s):  
Stefanie Vedder
Keyword(s):  
European Union ◽  
European Court Of Justice ◽  
Eu Law ◽  
The European Union ◽  
Principal Agent Theory ◽  
Strategic Actions ◽  
High Courts ◽  
Court Of Justice ◽  
European Court ◽  
Lower Courts

National high courts in the European Union (EU) are constantly challenged: the European Court of Justice (ECJ) claims the authority to declare national standing interpretations invalid should it find them incompatible with its views on EU law. This principle noticeably impairs the formerly undisputed sovereignty of national high courts. In addition, preliminary references empower lower courts to question interpretations established by their national ‘superiors’. Assuming that courts want to protect their own interests, the article presumes that national high courts develop strategies to elude the breach of their standing interpretations. Building on principal-agent theory, the article proposes that national high courts can use the level of (im-) precision in the wording of the ECJ’s judgements to continue applying their own interpretations. The article develops theoretical strategies for national high courts in their struggle for authority.

Review by Constitutional Courts of the Obligation of National Courts of Last Instance to Refer a Preliminary Question to the Court of Justice of the EU

2015 ◽  
Vol 16 (6) ◽  
pp. 1663-1700 ◽  
Author(s):  
Clelia Lacchi
Keyword(s):  
European Union ◽  
Eu Law ◽  
The European Union ◽  
Constitutional Courts ◽  
Member States ◽  
Constitutional Review ◽  
National Courts ◽  
Court Of Justice ◽  
Judicial Remedy ◽  
The Eu

The Constitutional Courts of a number of Member States exert a constitutional review on the obligation of national courts of last instance to make a reference for a preliminary ruling to the Court of Justice of the European Union (CJEU).Pursuant to Article 267(3) TFEU, national courts of last instance, namely courts or tribunals against whose decisions there is no judicial remedy under national law, are required to refer to the CJEU for a preliminary question related to the interpretation of the Treaties or the validity and interpretation of acts of European Union (EU) institutions. The CJEU specified the exceptions to this obligation inCILFIT. Indeed, national courts of last instance have a crucial role according to the devolution to national judges of the task of ensuring, in collaboration with the CJEU, the full application of EU law in all Member States and the judicial protection of individuals’ rights under EU law. With preliminary references as the keystone of the EU judicial system, the cooperation of national judges with the CJEU forms part of the EU constitutional structure in accordance with Article 19(1) TEU.

scholarly journals Characteristics of Precedent: The Case Law of the European Court of Justice in Three Dimensions

2015 ◽  
Vol 16 (5) ◽  
pp. 1073-1098 ◽  
Author(s):  
Mattias Derlén ◽  
Johan Lindholm
Keyword(s):  
European Union ◽  
Case Law ◽  
Three Dimensions ◽  
Eu Law ◽  
The European Union ◽  
European Union Law ◽  
Court Of Justice ◽  
European Court ◽  
Number Of Factors ◽  
The One

AbstractThe case law of the Court of Justice of the European Union (CJEU) is one of the most important sources of European Union law. However, case law's role in EU law is not uniform. By empirically studying how the Court uses its own case law as a source of law, we explore the correlation between, on the one hand, the characteristics of a CJEU case—type of action, actors involved, and area of law—and, on the other hand, the judgment's “embeddedness” in previous case law and value as a precedent in subsequent cases. Using this approach, we test, confirm, and debunk existing scholarship concerning the role of CJEU case law as a source of EU law. We offer the following conclusions: that CJEU case law cannot be treated as a single entity; that only a limited number of factors reliably affect a judgment's persuasive or precedential power; that the Court's use of its own case law as a source of law is particularly limited in successful infringement proceedings; that case law is particularly important in preliminary references—especially those concerning fundamental freedoms and competition law; and that initiating Member State and the number of observations affects the behavior of the Court.

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