Panel 302: Brexit and the Enforcement of EU Law and Policy II
Brexit and the Enforcement of EU Law and Policy II
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
Dispute Settlement After Brexit – Variation and Continuity?
Various models of dispute settlement exist within the framework of international law for inter-State disputes and for disputes involving international organisations. These models have quite different implications for the UK and EU individually and also in terms of their relationship with each other and with countries outside of the EU. Although certain elements of the UK-EU Withdrawal Agreement, including involving dispute settlement, extend beyond the departure of the UK from the EU and overlap in time with the coming into effect of the UK-EU Trade Cooperation Agreement (TCA), the TCA itself represents a radical departure in many respects from the enforcement framework of EU law. A binding method of quasi-judicial dispute settlement was agreed within the TCA, but this is subject to numerous caveats and exceptions, notwithstanding a notable continuity across a significant range of substantive legal rules between those in place prior to Brexit an those applicable under the TCA. This paper surveys the range of dispute settlement mechanisms in the TCA, in the perspective of their implications and longer-term prospects, including: continuing and potentially overlapping jurisdiction of the EU Court of Justice under the Withdrawal Agreement, the features of the arbitral mechanism in the TCA, the relationship between the Withdrawal Agreement and TCA and other methods of dispute settlement in international law (such as the use of the World Trading Organisation dispute settlement procedure), and the possible relevance of the European Court of Human Rights to the new framework of EU-U relations. The paper addresses the issue in the context that a rule-bound framework of dispute-settlement in legal systems provides for a more stable and regulated approach (to questions subject to a political consensus) that would bring political and economic and social benefits. Yet this is so in the context that the UK has succeeded in retaining some flexibility of approach, as one of the main anticipated advantages of Brexit, in its newly agreed relationship with the EU. Although the paper generally approaches the issue from the perspective of international law, the final section of it considers the overlapping frameworks of the Withdrawal Agreement and TCA from the internal perspective of UK constitutional and public law.
Different levels of ‘divergence’: From sector policy turns to withdrawal from the European Union
Brexit is an extreme case in a more general tendency towards broadening the scope of Member States’ powers in contrast to moving towards deeper European integration. This process has been going on for more than one and half decades. This paper focuses on two important policy sectors: state aid and public procurement, where changes in Member States’ competence and national authorities’ roles can be observed. We argue that Brexit should not be seen as isolated from this broader European context. There is a wide range of manifestations of political turn, from modest regulatory instruments of renationalisation, to direct involvement in economy, or strengthening populism. Drawing on the relevant regulatory frameworks, the practice of the EU institutions (Commission and the Court of Justice) and national reports, this paper examines the role the weaknesses and challenges of the current enforcement regime of EU state aid and public procurement rules have played in these ‘re-nationalist’ turns in the Member States and why these factors can be seen as decisive in the process of UK’s withdrawal. The paper also discusses what alternatives can be provided by the new state aid and public procurement regime introduced by the EU-UK Trade and Cooperation Agreement from 1 January 2021.