Developments in PIL Views and comments

On Brexit and the Absence of Cooperation on Civil and Commercial Matters

As reported in other blogs (see for instance here and here), the Trade and Cooperation Agreement that the EU and the UK managed to conclude right before the end of the Brexit transition period does not seem to make any provision for judicial cooperation in civil matters.

On the European side, the Notice to Stakeholders issued by the European Commission in August 2020 already took lack of agreement in this area for granted.

Surprisingly, the press release of the Commission of 24 December 2020, under the heading “A new partnership for our citizens’ security”, states

The Trade and Cooperation Agreement establishes a new framework for law enforcement and judicial cooperation in criminal and civil law matters. (italics added)

And to top it all, have a look a recital 47 of the Recast Service Regulation:

In accordance with Article 3 and Article 4a(1) of Protocol No 21 on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union, the United Kingdom and Ireland have notified their wish to take part in the adoption and application of this Regulation.

Probably just a clerical mistake.

On the UK side, the gov.uk website on Brexit was updated on 31 December 2020 (see here), providing information on the rules applicable to cross border cases in civil and commercial matters involving the courts of England and Wales. Links to all relevant Acts and Regulations are found there, too. For cross-border divorces, nothing has been added to the previous information, which already distinguished between proceedings initiated pre- and post-Brexit. The same applies to maintenance and disputes about parental responsibility.

Senior research fellow MPI Luxembourg (on leave) Legal secretary at the CJEU Full Professor PIL, University of La Laguna (Spain)

3 comments on “On Brexit and the Absence of Cooperation on Civil and Commercial Matters

  1. It might be a clerical mistake, but is it really without consequences? Recital 47 is a record of the consent of the EU to consider the UK as a participant to the Regulation. Depending on whether the UK participated in the drafting of the Regulation, that might be a record of the consent of the UK as well, or the UK might need to confirm it. If so, don’t we have an international agreement between two sovereigns?

  2. Marta Requejo Isidro

    Dear Gilles,

    If words have a meaning, you are right – although technically speaking I am not sure you can make an international agreement out of a Regulation. It’s an interesting idea though, which would in turn entail new questions, such as whether an interpretation by the Court of Justice, being intrinsically linked to the text itself, applies automatically also to the UK. My answer would be “no”, but would be curious to see other opinions. After all, being creative is the privilege of academics.

    However, we are or should be used to documents of all kinds (private, public) being signed and published, creating a state of mind or legitimate expectations and then simply discarded, even unilaterally, claiming there was a mistake or simply a change of mind. In the particular case of the new service regulation, I do not see any of the parties willing to engage in any agreement. A corrigendum will come up soon and that will be it.

    Just for the record, recital 37 Regulation (EU) 2020/1783 on cooperation in the taking of evidence only refers to Ireland:

    “In accordance with Article 3 and Article 4a(1) of Protocol No 21 on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union, Ireland has notified its wish to take part in the adoption and application of this Regulation.”

  3. Matthias Lehmann

    Having uttered your wish to be bound by a regulation is not tantamount to signing and ratifying a convention. I doubt very much that it would comply with the Vienna Convention on the Law of Treaties. Maybe Brexit revolutionises international law as well, but this probably only in the long term.

Comments are closed.

%d bloggers like this: