EU–UK institutional arrangements and Brexit: a view from Switzerland

In 1972 the UK signed an accession treaty with the EU while Switzerland and the EU concluded a free trade agreement. Nowadays, both countries have a very close relationship with the EU and are not (or not anymore) EU Member States. This article aims to analyse two complex legal paths taken by countries able but not willing (or no longer willing) to be part of the EU through institutional arrangements they have already negotiated or are currently negotiating with the EU. On the one hand, the UK was part of the EU legal order and is now extracting itself from the realm of EU law while switching to relations with the EU based on international law. On the other hand, Switzerland has built its relations with the EU on numerous bilateral agreements based on EU law without establishing a homogeneous institutional mechanism, which the EU has been insistently demanding since 2013. These two situations are paradoxically similar as for both of them the design of institutional arrangements depends on the degree of integration with/extraction from EU law. A comparison between the EU–UK withdrawal agreement, the EU–UK Trade and Cooperation Agreement (TCA) and the EU–Switzerland draft institutional agreement, as proposed in this article, confirms that the degree of institutional flexibility that the EU is able to offer to a third country with which it concludes an agreement is dependent on whether that agreement is based on EU law, and in particular, EU internal market law. This article argues that depending on the nature of law the agreement is based on, from an EU perspective variations in the role of Court of Justice of the European Union (CJEU) and/or of an arbitral tribunal may make sense, but this is not the case when one takes an outside perspective.

EU Law in investment arbitration: a view from international arbitral tribunals

The conflict between international investment law and EU law provides fruitful insights into how the arbitral tribunals, acting outside the EU’s judicial system, have viewed the EU and EU law. Taking as an example the topical questions of the principle of autonomy of EU law as well as the EU’s State aid rules in investor-State arbitration, the article discusses how arbitral tribunals have seen the role of EU law and how they have treated the opposite demands from the two legal regimes. The claim of EU law rendering the intra-EU investment treaties invalid has constantly proved unsuccessful, and the tribunals have maintained their jurisdiction to be based on international law. However, the possibility of EU law affecting the assessment of the merits of the cases is clearer and more accepted. While harmonious interpretation could somewhat alleviate the remaining conflicts between the two legal regimes, it is unlikely that either regime would compromise the core elements of their systems. The article argues that, for the specific nature of the EU’s legal order to be secured in a way that does not conflict with international law, the relationship between EU law, international (investment) law and investment dispute settlement should be clearly regulated in instruments of international law.

The EU in multilateral environmental compliance mechanisms: an outside view

With reference to its unique characteristics, the European Union (EU) regularly requests a special position in treaty cooperation or external judicial control mechanisms. Recurrently, these requests are successful and lead to the EU being treated differently from other treaty parties. These situations have been captured by the concept of ‘European exceptionalism’. EU requests for special treatment can also be witnessed in the supportive and facilitative procedures of compliance mechanisms in international environmental law. In those mechanisms, however, EU requests for special treatment are subject to careful scrutiny, and are even met with strong opposition by treaty institutions and treaty partners. Taking a closer look at the EU’s participation in compliance mechanisms, the present article discusses how certain unique EU characteristics may prompt an EU request for special treatment under compliance mechanisms and explores how compliance institutions and treaty partners have treated existing requests so far. With this outside perspective of non-EU actors, it is possible to understand where such requests can be successful and where they fail to be. In this way, the insights gained permit reflection upon the EU’s participation in compliance mechanisms and whether it truly constitutes a further phenomenon of ‘European exceptionalism’.

The UN Security Council and EU CSDP operations: exploring EU military operations from an outside perspective

This article examines European Union (EU) military operations from the perspective of the United Nations (UN) Security Council and UN collective security. The EU has supported UN peacekeeping missions through its own military operations within the Common Security and Defence Policy (CSDP), based on the authorisation of these operations by the UN Security Council. However, the EU’s military operation on the Mediterranean Sea, Operation Sophia, was established in 2015 without such prior UN Security Council authorisation. Although the UN Security Council authorised the operation subsequently, it was received in a less positive light than previous operations and was criticised not only for the way in which it was established, but also for its performance. The article argues that this break with prior practice does not indicate a new direction being taken by the EU as it has retreated from this approach and established a new military operation in the Mediterranean (Operation Irini), again firmly in line with a mandate issued by the UN Security Council in 2020. The assessment of EU military operations can be complex as there might be other EU agencies involved in the process such as Frontex, and their role in future operations, in particular in the field of migration, should be monitored. Yet this internal complexity does not alter their evaluation under international law. As soon as EU military operations are conducted on the territory of a third State, the EU needs to secure either a UN Security Council authorisation or State consent. Looking at this process from the perspective of the UN Security Council sheds light on the complexity of EU military operations and their position within UN collective security.

A Council of Europe perspective on the European Union: Crucial and complex cooperation

The article addresses the institutional role of the EU in the Council of Europe, with particular emphasis on EU participation in Council of Europe treaties and EU accession to the ECHR. While recognising the joint effort to achieve greater unity in the region of Europe through respect for the shared core values of pluralist democracy, human rights and the rule of law, the concerns raised by non-Member States of the EU about the impact of EU law and policies on the Council of Europe’s standards are examined. It is argued that the Council of Europe and the EU have a shared responsibility for upholding the effectiveness of their respective frameworks and ensuring that any overlapping competences do not create conflict. This is particularly evident when it comes to the European system for the protection of fundamental rights, which is characterised by overlapping standards and procedures. The existing cooperation between the Council of Europe and the EU should be strengthened through a more rational, rules-based approach. In particular, it is suggested that the two systems should jointly agree on a series of basic principles on the treaty-making process, providing for horizontal application by the introduction of specific rules on, for example, voting and speaking rights of the EU, the sharing of reporting obligations between the EU and its Member States under Council of Europe monitoring mechanisms, and financial arrangements. The EU’s participation and financial contribution to monitoring follow-up should always be considered on a case-by-case basis, taking into account the specificities of each mechanism.

Considering EU External Relations after Brexit: Introduction

This special issue of Europe and the World: A law review consists of selected articles that were presented at a workshop on External Relations in the post-Brexit EU, University of Strathclyde, Glasgow in October 2018. The workshop was generously funded by the James Madison Charitable Trust and the New Professors Fund of the University of Strathclyde. The purpose of the workshop was to consider the multifaceted dimensions of Brexit on the European Union’s external relations, and in particular to consider how interdisciplinary perspectives can enrich our understanding of the law underpinning the subject. This includes the EU’s externally facing institutional frameworks; law and policy on foreign, security and defence policies; trade and the Common Commercial Policy; and bilateral agreements with third countries or regions. The workshop was held around the mid-point in time from the referendum of June 2016 until the eventual departure of the UK on 31 January 2020 (although the final departure date and exit arrangements were unknown at the time). As such, the workshop contributors based their analyses on what the future impact of Brexit might be. Drawing on the extensive scholarship on EU external relations that has blossomed over previous decades, the authors of this special issue have been able to comprehensively analyse what future EU external relations might look like.

Post-Brexit Britain, the EU and Japan: The car industry, the aeronautical sector and military cooperation

As a growing economic power Japan experienced trade conflicts with the European Communities (EC; from 1993 onwards the European Union, EU). Although the British government was criticised by EU partners and domestics groups – politicians, industry, trade unions and public opinion – the UK became Japan’s primary gateway to the European single market. In 1973 Japanese multinationals began constructing manufacturing plants in Britain to reduce exports from Japan, to mitigate export duties and to ease these trade conflicts. Brexit, therefore, poses a serious risk and requires Japan to urgently reconsider and redefine its relations with Britain, the EU and other Member States of the EU. On the other hand, uneasy stand-offs in the Asia-Pacific region might push post-Brexit Britain to cooperate more closely with Japan in security matters. China’s territorial disputes with neighbouring countries and North Korea’s nuclear threat will require Japan and Britain to play a more active role in stabilising the region, not only by conducting joint military drills, but also by increasing collaboration in the arms industry. UK–Japan relations are drifting away from their traditional focus on trade and are expanding into the military field.

Autonomy and international investment agreements after Opinion 1/17

The application and implications of the principle of autonomy for international investment agreements concluded by the Member States and the European Union (EU) has become a recurrent theme before the Court of Justice of the European Union. The decisions in Achmea and Opinion 1/17 show that autonomy unfolds differently in intra- and extra-EU investment relations and can only be preserved in the latter context. The present article examines this difference and, in light of Opinion 1/17 , seeks to explain how and why the autonomy of EU law can be preserved for international investment agreements through careful treaty design. In addition, it sheds some light on the practical consequences for the EU’s and the Member States’ external investment relations.

The independence and impartiality of the hybrid CETA Investment Court System: Reflections in the aftermath of Opinion 1/17

In its recent Opinion 1/17, the Court of Justice of the EU (CJEU) examined the compatibility of an external judicial body, the Investment Court System (ICS) under the EU–Canada Comprehensive and Economic Trade Agreement (CETA), with EU law. At a time when judicial independence has arisen as one of the main challenges for the rule of law in the EU, this article discusses the Court’s findings in relation to the compatibility of the ICS with the right of access to an independent and impartial tribunal.

Values and objectives of the EU in light of Opinion 1/17: ‘Trade for all’, above all

In Opinion 1/17 the Court of Justice of the European Union (CJEU) ruled that the new Investment Court System (ICS) in the Canada–EU Comprehensive Economic and Trade Agreement (CETA) is compatible with the EU constitutional framework. This article examines the CJEU’s analysis of the ICS in its Opinion through the prism of EU values and objectives. Given the judicial nature of the ICS, the article unfolds around the concept of the rule of law. The scope and the content of this core EU value are considered under both EU law and the European Convention on Human Rights (ECHR). In particular, the ICS is analysed in light of the two core rule-of-law requirements: equal treatment and the independence of courts, enshrined in Articles 20 and 47 of the Charter of Fundamental Rights (CFR). Importantly, in Opinion 1/17 the CJEU for the first time applied Article 47 CFR to a court outside the EU judicial system. While the CJEU ruled that the ICS complies with the CFR rule-of-law criteria, this article argues that it nevertheless falls short of the rule-of-law standards required for judicial bodies under EU law. The article demonstrates that the CJEU prioritises free and fair trade as the CETA’s core objective, rather than the rule of law, and endorses the ICS as the conditio sine qua non of guaranteeing such trade. The Court’s findings have wider consequences for the rule of law in international law as the EU continues to pursue the establishment of a Multilateral Investment Court (MIC).