Thursday, April 26, 2018

Article 127 of the EEA Agreement

A lot of fairly hopeful Remainers continue to hope that Article 127 of the European Economic Area (EEA) Agreement could keep them in the single market after Brexit. The UK is a signatory to the EEA Agreement which extends the single market to the Iceland, Liechtenstein and Norway.
Article 127 provides that:
“Each Contracting Party may withdraw from this Agreement provided it gives at least twelve months’ notice in writing to the other Contracting Parties.
Immediately after the notification of the intended withdrawal, the other Contracting Parties shall convene a diplomatic conference in order to envisage the necessary modifications to bring to the Agreement.”
The UK has not invoked this provision which leads many to think that the EEA Agreement would still apply to the UK after Brexit. Unfortunately this isn't how it works!
Context is everything. Article 2 of the Agreement provides that:
“The term ‘Contracting Parties’ means, concerning the Community and the EC Member States, the Community and the EC Member States, or the Community, or the EC Member States. The meaning to be attributed to this expression in each case is to be deduced from the relevant provisions of this Agreement and from the respective competences of the Community and the EC Member States as they follow from the Treaty establishing the European Economic Community.”
Iceland, Liechtenstein and Norway clearly are contracting parties but regarding the EU (the legal successor to the European Community) and its member states, contracting parties could mean:
a.           the EU and the EU member states (acting together),
b.          the EU (on its own), or
c.           the EU member states.
Right, everybody clear now? Well no, but other aspects of the Agreement are less open to interpretation.
Article 2 contains the following further definition:
“the term ‘EFTA States’ means the Iceland, the Principality of Liechtenstein and the Kingdom of Norway;”
Article 28(1) provides that:
“Freedom of movement for workers shall be secured among EC Member States and EFTA States.”
Article 126(1) provides that:
“The Agreement shall apply to the territories to which the Treaty establishing the European Economic Community is applied and under the conditions laid down in that Treaty, and to the territories of Iceland, the Principality of Liechtenstein and the Kingdom of Norway.”
Together these mean that:
First, even if the UK were to join the European Free Trade Association, it would not automatically become an EFTA State for the purposes of the EEA Agreement.
Second, when the EU treaties cease to apply to the UK, the EEA Agreement will also cease to apply. The UK will be neither a "EC Member State" or a "EFTA State" so the free movement of workers provisions will also cease to apply. A transitional deal between the EU and the UK won't help, the UK will need a separate transitional deal with the EFTA states.
In follows that that the phrase "Contracting Party" in Article 127 doesn't refer to a single EU member state, but to the EU in its entirety. The EU could withdraw from the EEA as could Iceland, Liechtenstein and Norway, but an individual EU member state couldn't withdraw in its own right.
There might be an argument to say that the UK remains a contracting party in the Vienna Convention sense, as it signed and ratified the EEA Agreement, but it would be a hollow position without the application of any substantive provisions.
The EEA Agreement is not unique. Pretty much all the agreements the EU signs contain territorial provisions similar to Article 126 of the EEA Agreement. Trade deals with Canada and Japan will cease to apply to the UK from Brexit day unless those countries agree to continue to apply them to the UK after Brexit day.

Thursday, August 16, 2012

A questionable charge

(An occasional blog by an occasional blogger.)

Twitter is alive with the assertion that Julian Assange is wanted by Sweden for "questioning" and has not been "charged". In addition we are told that Assange offered to be questioned in London and that Sweden's rejected of this offer is "suspicious".

It is not unusual in media coverage of extradition cases for differences between common law and civil law legal systems to be forgotten. In reality Julian Assange is not wanted for questioning, certainly not in the way as this expression is used in common law legal procedure, ie a police interview.

European Arrest Warrants may only be issued for the purposed of conducting a criminal prosecution not merely an investigation. In Sweden in order to charge an individual with a criminal offence, the investigated person must be brought before a magistrate to be formally interrogated. The person must be present. The evidence is put to him and he is given a opportunity to reply. This is not a police interview. The investigated person has the right to be legally represented. It is only after this procedure takes place that formal charges can be preferred. If charges are preferred a trial follows shortly afterwards.

In Ireland this element of Swedish criminal procedure was described by the President of the High Court in Minister for Justice v. Ollsen as:
"The fact that under the law of Sweden the charge cannot be actually laid in a formal sense until he is returned to be present at the Court cannot under the Framework Decision be interpreted as meaning that a decision to prosecute and try him for the offences has not been made. It is not open at this stage for the respondent to say that he is only sought so that he can be questioned as part of the investigation. It is clear that the process has advanced well beyond that point, and to the point that he will, subject to being afforded his rights to object when again before the District court, be prosecuted and tried for these offences." [2008] IEHC 37, page 17. (The decision was upheld on appeal.)
Almost needless to say, the English courts examined Assange's contention that he was being sought for questioning and not prosecution, and rejected it. In the High Court the judges ruled that:
"Although it is clear a decision has not been taken to charge him, that is because, under Swedish procedure, that decision is taken at a late stage with the trial following quickly thereafter. In England and Wales, a decision to charge is taken at a very early stage; there can be no doubt that if what Mr Assange had done had been done in England and Wales, he would have been charged and thus criminal proceedings would have been commenced. If the commencement of criminal proceedings were to be viewed as dependent on whether a person had been charged, it would be to look at Swedish procedure through the narrowest of common law eyes. Looking at it through cosmopolitan eyes on this basis, criminal proceedings have commenced against Mr Assange." [2011] EWHC 2849 (Admin), para 153.
Thus Assange's offer to allow himself to be interviewed by the Swedish prosecutors in London was disingenuous. The case against him has progressed to an advanced stage and his presence in Sweden is required. This is after all why Sweden requested his surrender.

Thursday, April 22, 2010

Ryanair may just be right!

EU regulations rarely make for either good reading. And for the fairly large number of people whose holidays over the last week were somewhat longer than expected, recital 14 of Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91 may make for rather depressing reading:
"As under the Montreal Convention, obligations on operating air carriers should be limited or excluded in cases where an event has been caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken. Such circumstances may, in particular, occur in cases of political instability, meteorological conditions incompatible with the operation of the flight concerned, security risks, unexpected flight safety shortcomings and strikes that affect the operation of an operating air carrier."
The media may be full of talk of Ryanair's supposed refusal to respect EU rules on airline passengers, but if volcanic ash causing a flight blackout in Europe doesn't count as extraordinary circumstances, it's difficult to imagine what would!

Thursday, September 24, 2009

The Boring Reality of the Lisbon Treaty

Don't get me wrong but the EU is boring, really boring. There's lots of people trying to figure out how to make the EU more accessible to its citizens and who despair at how little attention the EU gets at national level, but then they forget just how boring the EU can be. Seventy years ago Europe was more interesting, but we'll get to that in a moment.

The Lisbon Treaty is an example of what the EU does best: it's mind numbingly boring. It's very long, fairly complicated and almost certain to send you asleep even if you've drunken five red bulls and a few expressos beforehand. The Treaty's a compromise built on another compromise which amends a few old compromises which were themselves based on previous compromises. It's a compromise between big states and small states. Between northern states and southern ones. Between left-wing governments and right-wing ones. Between states with official churches and those with secular constitutions. Between those who would like to see more entrenched workers' rights and those would like to have freer, less regulated markets. Compromise is inherent to the European Union and to the Lisbon Treaty, and it would be difficult to understand either without realising this.

Of course compromise has its downsides. The text is frequently vague and many of its objectives, in the eyes of many, conflict. Thus the EU is pledged to further economic development and sustainable development, free markets and social protection, free and fair trade, and so on. This ambiguousness is what allows opponents of the Treaty to make contradictory statements about what the Treaty means, but is in reality misconstrued. The vagueness exists to allow a degree of latitude in implementing policy choices. What policies get implemented will depend, more on the composition of the European Parliament and Council of Ministers than on any biased and nitpicking interpretations of the treaties. Regardless of what happens on October 2nd, whether trade conducted by European countries is freer or fairer will depend what the European Commission and EU member states, acting together, do on the trade front, and not on any form of words in Nice or Lisbon. If we want a more left-ring or a more right-wing Europe, we'll have to vote and campaign that way.

The Lisbon Treaty is, like all of the other treaties before it, a vehicle for doing things. It sets broad aims on what we desire to achieve and sets the ball rolling. What the EU is doing in five, ten or twenty years times is up to us. I don't like everything that the EU does, no more than I believe that all Irish laws are just and fair, but approving or rejecting Lisbon isn't about whether you dislike this or that policy, but about whether you think the EU should exist as a vehicle for achieving things that simply couldn't be achieved without it, and whether you believe Lisbon will make the EU more effective. You're not going to like everything that the EU does. What it's really about is believing that the project is worthwhile.

There is an old joke on the internet about a Jewish man called Ikey reading a newspaper on a park bench. His friend, who is also Jewish, is walking past and is startled to discover that Ikey is reading an anti-Semitic newspaper. When asked why, Ikey simply responds that other newspapers make him depressed but anti-Semitic newspapers say that Jews are all rich and run the world. In a similar vein the sobering reality of the Lisbon Treaty is that it isn't going to introduce conscription to a European army, re-introduce the death penalty, reduce the minimum wage to €1.84, increase our corporate tax rate, establish a European super-state, force us to accept gay-marriage or any of the other nonsense floating around the internet and on some posters. It just isn't that important. The much more modest reality is that the treaty will reform the EU's voting rules, give the European Parliament a much greater say in passing EU laws, give the Charter of Fundamental Rights and Freedoms legal force (with respect to EU law but not national law), and establish a position of European Council President to replace the current rotating system. Reality can be a bit boring too.

One of the recurring characteristics of EU referendum campaigns is how much the reality of the EU and our membership of it gets distorted. A trawl over claims made in previous referendum campaign's reveal the degree of repeated claims and thing which just didn't happen:
"The Amsterdam Treaty provides the European Union with an embryonic constitution of what, with the establishment of the single currency, will be well on the way to becoming a United States of Europe; and that is tantamount virtually to giving Ireland a new constitution also. The treaty gives legal personality to the European Union for the first time, founding it on principles instead of on its member states, which is a major constitutional step."
Anthony Coughlan, Letter to the editor of the Irish Times, 8 April 1998

"For the most part our people do not realise what is involved - that we hand over what freedom we have left to the faceless bureaucrats of Brussels, that we become a mere province of a new superstate, that our Constitution and Supreme Court become subservient to the European Court. This goes for our churches also."
Fr. Tom Ingoldsby, Letter to the editor of the Irish Times, 29 April 1998

"Politically and constitutionally, however, the most important thing the new treaty would do would be to give to the new European Union what it would establish the constitutional form of a supranational state for the first time, making this new union separate from and superior to its 27 member states. ... This would make the EU just like the United States of America..."
Anthony Coughlan (commenting on the then draft EU reform treaty), Irish Times article, 28 June 2007

A real debate merits and demerits of an international agreement between European leaders, gets buried under an phoney debate about neutrality and abortion. A heavily jaundiced understanding of how the European Union works becomes current, and internet conspiracy theories outweigh the experience of thirty-five years of membership. We get the opportunity to vote no against privatisation and to defend neutrality, even though our own democratically elected government privatised Telecom Éireann and allowed the Americans to use Shannon Airport, all without the EU pushing them one way or another.

Seventy years Europe was interesting but it didn't work. Today the European Union is boring but it works. The Lisbon Treaty is the fulmination of a long process of reform seeking to make the Union work better. It's very difficult to get anyone excited over it or write slogans for posters, but there it is.