The CJEU rules that the EU is more competent than previously thought

Aidan Robertson QC

In earlier blog posts (here and here) I explained that the Court of Justice of the European Union (CJEU) was due to rule on the extent of the Union’s exclusive competence to negotiate trade deals in a case in which the Commission was seeking an opinion on the EU/Singapore trade deal (Opinion 2/15) and that this would be significant for the trade deal that the UK is hoping to negotiate with the EU.

The CJEU’s Opinion was handed down on 16 May 2017. The CJEU has ruled that the extent of the EU’s exclusive competence is much broader than the Court’s Advocate General had advised in her opinion handed down on 21 December 2016. In that opinion (see AG Sharpston had identified several areas where the EU did not have exclusive competence, albeit none of these would likely be core to any trade deal.

The CJEU has now ruled that EU’s competence is broader than its Advocate General had advised. The only areas in the EU/Singapore free trade agreement which the CJEU identified as falling within shared competence with Member States were the fields of non-direct foreign trade investment and the regime governing dispute settlement between investors and Member States.

This means that any trade deal struck between the EU and the UK, even if it covers those two areas of mixed competence, can enter into force on the basis of provisional application even without ratification by all Member States (including regional parliaments where relevant). Member State ratification will only be required to give effect to the two areas of mixed competence, if they form part of an EU/UK agreement. This should simplify the task of negotiation of a new trade agreement.

The CJEU’s press release is here.

The CJEU’s Opinion is here.

Consultations on post Brexit UK sanctions law and policy

Maya Lester QC

There are currently 2 major consultations into the shape of UK economic sanctions post Brexit:

1. The Foreign & Commonwealth Office has published a white paper consulting on the legal powers it will need to be able to continue imposing and implementing sanctions once the UK leaves the EU.  Its focus is on the legal powers necessary to operate UK sanctions and not on the shape of UK sanctions policy in the future or other policy issues. Comments on the questions for consultation should be sent to the FCO by 23 June 2017 (details on the consultation paper).

2. The House of Lords EU External Affairs Sub-Committee is undertaking an inquiry into UK sanctions policy after Brexit.  The inquiry will hear oral evidence and take some written evidence by the end of June, and will explore the advantages and disadvantages of future co-operation between the UK and the EU on sanctions policy and how co-operation might take place, the current EU sanctions regime and how this will be transposed into UK law, and the impact of a separate UK sanctions regime on the UK’s ability to achieve its foreign policy goals. The UK Sub-Committee’s page giving information about the inquiry is here.

This follows also the call from the House of Commons Foreign Affairs Committee for the FCO to clarify by March 2018 “how the UK will impose sanctions post-Brexit, explain whether Brexit would entail changes from the current sanctions regime and analyse the costs and benefits of the possible models for future UK-administered sanctions”.  This was in the Committee’s report on the UK’s relations with Russia (link here).

These follow 2 other recent UK sanctions consultations:

3. A consultation by HM Treasury’s Office of Financial Sanctions Implementation (OFSI) on its new powers to impose civil monetary penalties for sanctions breaches, which led to new guidance and a consultation response (link here).

4. A report by the House of Lords EU Justice Sub-Committee on the legality of the EU sanctions listing procedure (link here).  The purpose of this inquiry was to understand why EU targeted sanctions were being struck down by the EU courts, and whether improvements could be made to the sanctions listing process, and the report makes a number of recommendations to Government (consultation response here).

Further details and links on