Part 4 – Can the European Court of Justice Decide on the Lawfulness of the Brexit Transition Period and Other Aspects of the Withdrawal Agreement?

    View Authors June 2018

    Article 218 (11) of the Treaty on the Functioning of the European Union (TFEU) provides that each member state, the European Parliament, the Council and the Commission may obtain the opinion of the European Court of Justice (ECJ) on whether an international agreement envisaged to be entered into by the EU is compatible with the Treaties.

    It is common practice that such opinions of the ECJ are obtained (see our Brexit Legal blog).

    Samples of constitutionally important legal opinions rendered by the ECJ under Article 218 (11) of the TFEU (and its predecessors) in relation to agreements that the EU had entered into (or envisaged to enter into) include:

    • ECJ opinions 1/91 and 1/92 on the European Economic Area (EEA) Agreement (dealing mainly with dispute resolution contained in the EEA Agreement)
    • ECJ opinion 1/94 relating to the EU agreeing to accede to WTO, GATS and TRIPs
    • ECJ Opinion 1/00 in respect of the Multilateral Treaty on the European Common Aviation Area (dealing with the system of dispute resolution) (see our Brexit Legal blog).
    • ECJ opinion 2/13 relating to the accession of the EU to the European Convention on Human Rights (which did not take place because the ECJ ruled that the system of judicial review for any dispute in relation to the interpretation of the relevant rules was not compatible with the powers of the ECJ under the EU Treaties)
    • ECJ opinion 2/15 relating to the free trade agreement with Singapore

    However, the rules relating to the Transition Period are contained in the draft Withdrawal Agreement, which is technically not an international agreement the EU contemplates to enter into, because at the time of entering into the Withdrawal Agreement the UK would still be a member state of the EU.

    It is, therefore, unclear whether the Commission, the European Parliament, the European Council and/or any member state (including the UK or the Republic of Ireland) would be entitled to request from the ECJ – pursuant to Article 218 (11) of the TFEU – a legal opinion on the draft Withdrawal Agreement, the legality of the Transition Period or any other aspects and the scope and contents of the topics dealt with in the Withdrawal Agreement (including whether the Withdrawal Agreement sufficiently reflects the powers of the ECJ as ultimate arbiter for all issues relating to the consistent and coherent application of rules that reflect EU rules).

    In this context, it must be taken into account that Article 50 of the TEU is part of the Constitution of the EU. Therefore, all issues relating to Article 50 are constitutional issues of the EU.

    The ECJ is the constitutional court of the EU that decides on all constitutional disputes. In particular, the ECJ decides – pursuant to Article 263 of the TFEU – on the legality of the acts of the Council and the Commission, including in the context of Article 50 of the TEU.

    Article 218 (11) of the TFEU grants the ECJ the competence to decide on the legality of treaties the EU enters into by way of a legal opinion to be rendered prior to the conclusion of such treaty, because it would be futile to decide on the legality of the acts of the Commission and the Council under Article 263 of TFEU in the context of entering into such a treaty on behalf of the EU if such treaty would be concluded and become binding for the EU prior to the ECJ having an opportunity to decide on its legality.

    The same rationale applies to Article 50, because it would be futile to check the legality of the acts of the Commission and the Council in the context of entering into the Article 50 Withdrawal Agreement if that agreement has become binding on the EU. The ECJ applies Union law in an autonomous way and the wording of the relevant Union law is only the starting point of any interpretation and application of Union law, which is always subject to the effet utile principle.

    Accordingly, a number of legal experts believe that the ECJ would apply Article 218 (11) of the TFEU to the Withdrawal Agreement and would, if there is an application to do so, render a legal opinion in respect thereof.