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Panel 202: Brexit and the Enforcement of EU Law and Policy I
11:30am - 1:00pm
Session Chair: Sara Drake, Cardiff University
Brexit and the Enforcement of EU Law and Policy I
Chair(s): Sara Drake (Cardiff University, United Kingdom)
One of the defining features and key strengths of the European Union as an international organisation is its multi-layered system of enforcement. For the UK, withdrawal has severely ruptured this regime and has led to the creation of new governance and institutional structures at international, national and devolved/decentralised levels. This is one of two panels which brings together papers which explore the ramifications of Brexit on the enforcement of EU law and policy in a range of policy areas.
Presentations of the Symposium
The impact of Brexit on the implementation of EU chemicals policy: The case of the European Chemical Agency's Enforcement Fourm
Christoph Klika European Institute of Public Administration
In recent years, policy implementation in the EU is characterized by various institutional innovations that suggest a more prominent role of supranational actors in enforcing EU law and policies. This role might be assumed by direct enforcement of EU institutions, e.g. the Commission, national and EU agencies as well as networks of enforcement authorities. The REACH regulation, which is the flagship of EU chemicals policy, is an interesting case because it entails (potential) supranational enforcement by the European Chemicals Agency (ECHA), networked enforcement by the so-called Forum, an ECHA body, as well as national enforcement by the Member States. The problem of effectively enforcing the various regulatory instruments of REACH has occupied policy makers for some time, this problem has really moved up on the agenda since the latest REACH review in 2018, which was followed up by the Chemicals Strategy for Sustainability published in 2020. At the same time, through Brexit, the UK has separated itself from EU chemicals policy by creating its own regulatory regime, the UK REACH. The separation of EU and UK REACH was marred by uncertainty and controversy, and questions remain as to how this separation will be implemented on both sides. In this paper, I explore the implications of Brexit on the enforcement of the REACH regulation and chemicals policy in the EU. The focus of this exploration will be on the impact on the networked enforcement through ECHA and the enforcement projects by the Forum. Given that the UK has not supported specific regulatory instruments of REACH (notably authorization), the paper is based on the working assumption that Brexit does not have much of an impact on these enforcement projects. Admittedly, this assumption is far-fetched and requires empirical testing. To test this assumption will examine the role of the UK in the enforcement of REACH until Brexit and thus sheds light on potential developments of enforcing REACH after Brexit.
Future global cooperation at the Hague Conference on Private International Law involving the UK and the EU and others on Recognition of Divorces
Cleo Davies1, Jayne Holliday2 1University of East Anglia, 2University of Stirling
The UK’s withdrawal from the EU has meant that instead of relying on the EU private international law of family law that existed prior to Brexit, global private international law applies. This works for matters relating to parental responsibility, child abduction and maintenance because of the Hague Conventions to which the EU and or its Member States and the UK are parties. However, it is clear that the UK and the EU do not have a satisfactory framework for the recognition of foreign divorces because many EU states are not parties to the 1970 Hague Recognition of Divorces Convention.
This paper considers why the EU does not have a clear external policy in relation to recognition of divorces. It is puzzling that the EU has internal rules on recognition of divorces but no external policy on this matter. One suggestion is for all EU Member States to become parties to the 1970 Convention to which the UK and 12 member states of the EU are party. Renewed emphasis on the relevance of that Convention to recognition of divorces in the twenty first century would be enhanced by the Hague Conference convening the first ever Review Special Commission on that Convention.
Courting Controversy? Dispute Resolution and the role of the CJEU post-Brexit
Niall O'Connor, Theodore Konstadinides, Anastasia Karatzia University of Essex
On 15 March 2021, the European Commission initiated infringement proceedings against the United Kingdom (UK) in response to perceived breaches of the EU-UK Withdrawal Agreement. This is the second time in just six months that the UK Government stands accused of breaching its international law obligations under the Agreement, all while the future Trade and Co-operation Agreement (TCA) is yet to be ratified by the European Parliament. It is clear that the mechanisms for resolving disputes between the EU and the UK will be tested much earlier and perhaps much more frequently than might have been foreseen. Despite this, the precise role of a key institutional actor, the Court of Justice of the EU (CJEU) remains ill-defined and controversial.
This paper sheds light on the CJEU’s likely involvement in the resolution of disputes between the EU and the UK across the arrangements governing both the UK’s withdrawal from and future relationship with the EU. It provides an overview of the dispute resolution mechanisms under the Withdrawal Agreement and the TCA and evaluates the future role of the CJEU as a dispute settlement forum including the extent to which the UK will remain subject to its jurisdiction in the long term. The paper argues that the apparently limited role of the CJEU in the post-Brexit UK-EU relationship must be viewed in light of the terms of the agreements themselves, which in many respects suggest a much more ambitious ongoing role for the Court. The CJEU as the guardian of the EU Treaties and the superior court governing the interpretation and application will undoubtedly seek to safeguard its place in the EU’s constitutional order. The reach of the Court’s jurisdiction will be difficult to avoid in practice.