INSTITUTIONAL PROVISIONS
Joint Committee
A Joint Committee, comprising representatives of the European Union and of the United Kingdom, is hereby established. The Joint Committee shall be co-chaired by the European Union and the United Kingdom.
The Joint Committee shall meet at the request of the European Union or the United Kingdom, and in any event shall meet at least once a year. The Joint Committee shall set its meeting schedule and its agenda by mutual consent. The work of the Joint Committee shall be governed by the rules of procedure set out in Annex VIII to the Agreement.
The Joint Committee shall be responsible for the implementation and application of the Agreement. The European Union and the United Kingdom may each refer to the Joint Committee any issue relating to the implementation, application and interpretation of the Agreement.
The Joint Committee shall:
- supervise and facilitate the implementation and application of the Agreement;
- decide on the tasks of the specialised committees and supervise their work;
- seek appropriate ways and methods of preventing problems that might arise in areas covered by the Agreement or of resolving disputes that may arise regarding the interpretation and application of the Agreement;
- consider any matter of interest relating to an area covered by the Agreement;
- adopt decisions and make recommendations as set out in Article 166; and
- adopt amendments to the Agreement in the cases provided for in the Agreement.
The Joint Committee may:
- delegate responsibilities to specialised committees, except those responsibilities referred to at points 2, 5 and 6 above
- establish specialised committees other than those established by Article 165, in order to assist the Joint Committee in the performance of its tasks;
- change the tasks assigned to specialised committees and dissolve any of those committees;
- except in relation to Parts One (Citizens Rights, Four (Transition) and Six (Institutions), until the end of the fourth year following the end of the transition period, adopt decisions amending the Agreement, provided that such amendments are necessary to correct errors, to address omissions or other deficiencies, or to address situations unforeseen when the Agreement was signed, and provided that such decisions may not amend the essential elements of the Agreement.
- adopt amendments to the rules of procedure; and
- take such other actions in the exercise of its functions as decided by the European Union and the United Kingdom.
The Joint Committee shall issue an annual report on the functioning of the Agreement.
Specialised committees
The following specialised committees are hereby established:
- the Committee on citizens’ rights;
- the Committee on the other separation provisions;
- the Committee on issues related to the implementation of the Protocol on Ireland/Northern Ireland;
- the Committee on issues related to the implementation of the Protocol relating to the Sovereign Base Areas in Cyprus;
- the Committee on issues related to the implementation of the Protocol on Gibraltar; and
- the Committee on the financial provisions.
Those specialised committees shall comprise representatives of the European Union and representatives of the United Kingdom.
The work of the specialised committees shall be governed by the rules of procedure set out in Annex VIII to the Agreement.
Unless otherwise provided in the Agreement, or unless the co-chairs decide otherwise, the specialised committees shall meet at least once a year. Additional meetings may be held at the request of the European Union, the United Kingdom, or of the Joint Committee. They shall be co-chaired by representatives of the European Union and of the United Kingdom. The specialised committees shall set their meeting schedule and agenda by mutual consent. The specialised committees may draw up draft decisions and recommendations and refer them for adoption by the Joint Committee.
The European Union and the United Kingdom shall ensure that their respective representatives on the specialised committees have the appropriate expertise with respect to the issues under discussion.
The specialised committees shall inform the Joint Committee of their meeting schedules and agenda sufficiently in advance of their meetings, and shall report to the Joint Committee on the results and conclusions of each of their meetings. The creation or existence of a specialised committee shall not prevent the European Union or the United Kingdom from bringing any matter directly to the Joint Committee.
Decisions and recommendations
The Joint Committee shall, for the purposes of the Agreement, have the power to adopt decisions in respect of all matters for which the Agreement so provides and to make appropriate recommendations to the European Union and the United Kingdom.
The decisions adopted by the Joint Committee shall be binding on the European Union and the United Kingdom, and the European Union and the United Kingdom shall implement those decisions. They shall have the same legal effect as the Agreement.
he Joint Committee shall adopt its decisions and make its recommendations by mutual consent.
DISPUTE SETTLEMENT
Cooperation
The European Union and the United Kingdom shall at all times endeavour to agree on the interpretation and application of the Agreement, and shall make every attempt, through cooperation and consultations, to arrive at a mutually satisfactory resolution of any matter that might affect its operation.
Exclusivity
For any dispute between the European Union and the United Kingdom arising under the Agreement, the European Union and the United Kingdom shall only have recourse to the procedures provided for in the Agreement.
Consultations and communications in the Joint Committee
The European Union and the United Kingdom shall endeavour to resolve any dispute regarding the interpretation and application of the provisions of the Agreement by entering into consultations in the Joint Committee in good faith, with the aim of reaching a mutually agreed solution. A party wishing to commence consultations shall provide written notice to the Joint Committee.
Any communication or notification between the European Union and the United Kingdom provided for in these provisions shall be made within the Joint Committee.
Initiation of the arbitration procedure
If no mutually agreed solution has been reached within 3 months after a written notice has been provided to the Joint Committee, the European Union or the United Kingdom may request the establishment of an arbitration panel. Such request shall be made in writing to the other party and to the International Bureau of the Permanent Court of Arbitration. The request shall identify the subject matter of the dispute to be brought before the arbitration panel and a summary of the legal arguments in support of the request.
The European Union and the United Kingdom may agree that the establishment of an arbitration panel may be requested before the expiry of the time limit laid down above.
Establishment of the arbitration panel
The Joint Committee shall, no later than by the end of the transition period, establish a list of 25 persons who are willing and able to serve as members of an arbitration panel. To that end, the European Union and the United Kingdom shall each propose ten persons. The European Union and the United Kingdom shall also jointly propose five persons to act as chairperson of the arbitration panel. The Joint Committee shall ensure that the list complies with these requirements at any moment in time.
The list shall only comprise persons whose independence is beyond doubt, who possess the qualifications required for appointment to the highest judicial office in their respective countries or who are jurisconsults of recognised competence, and who possess specialised knowledge or experience of EU law and public international law. That list shall not comprise persons who are members, officials or other servants of the European Union institutions, of the government of a Member State, or of the government of the United Kingdom.
An arbitration panel shall be composed of five members.
Within 15 days of the date of a request the panel shall be established. The European Union and the United Kingdom shall each nominate two members from among the persons on the list established. The chairperson shall be selected by consensus by the members of the panel from the persons jointly nominated by the European Union and the United Kingdom to serve as a chairperson.
In the event that the members of the panel are unable to agree on the selection of the chairperson within the time limit laid down , the European Union or the United Kingdom may request the Secretary-General of the Permanent Court of Arbitration to select the chairperson by lot from among the persons jointly proposed by the European Union and the United Kingdom to act as chairperson.
The Secretary-General of the Permanent Court of Arbitration shall make the selection referred to within 5 days of the request. Representatives of the European Union and of the United Kingdom shall be entitled to be present at the selection.
The date of establishment of the arbitration panel shall be the date on which the selection procedure is completed.
In the event that the list has not been established by the expiry of the time limit laid down, the European Union and the United Kingdom shall within 5 days each nominate two persons to serve as members of the panel. If persons have been proposed, the nominations shall be made from among those persons. The chairperson shall then be appointed in accordance with the procedure set out.
In the event that the European Union and the United Kingdom have not, within a further 5 days, jointly proposed at least one person to serve as chairperson, the Secretary-General of the Permanent Court of Arbitration shall within five days, after consultation with the European Union and the United Kingdom, propose a chairperson who fulfils the requirements. Unless either the European Union or the United Kingdom objects to that proposal within 5 days, the person proposed by the Secretary-General of the Permanent Court of Arbitration shall be appointed.
In the event of failure to establish an arbitration panel within 3 months from the date of the request made, the Secretary-General of the Permanent Court of Arbitration shall, upon request by either the European Union or the United Kingdom, within 15 days of such request, after consultation with the European Union and the United Kingdom, appoint persons who fulfil the requirements of paragraph 2 of this Article to constitute the arbitration panel.
Rules of procedure
Dispute settlement procedures set out in these provisions shall be governed by the rules of procedure set out, the Joint Committee shall keep the functioning of those dispute settlement procedures under constant review and may amend the Rules of Procedure.
Time-frame of procedure before the arbitration panel
The arbitration panel shall notify its ruling to the European Union, the United Kingdom and the Joint Committee within 12 months from the date of establishment of the arbitration panel. Where the arbitration panel considers that it cannot comply with this time limit, its chairperson shall notify the European Union and the United Kingdom in writing, stating the reasons for the delay and the date on which the panel intends to conclude its work.
Within 10 days of the establishment of the arbitration panel the European Union or the United Kingdom may submit a reasoned request to the effect that the case is urgent. In that case, the arbitration panel shall give a ruling on the urgency within 15 days from the receipt of such request. If it has determined the urgency of the case, the arbitration panel shall make every effort to notify its ruling to the European Union and the United Kingdom within 6 months from the date of its establishment.
Disputes raising questions of EU law
Where a dispute submitted to arbitration in accordance with these provisions raises a question of interpretation of a concept of EU law, a question of interpretation of a provision of EU law referred to in the Agreement or a question of whether the United Kingdom has complied with its obligations to enforce a judgement of the Court of Justice of the European Union, the arbitration panel shall not decide on any such question.
In such case, it shall request the Court of Justice of the European Union to give a ruling on the question. The Court of Justice of the European Union shall have jurisdiction to give such a ruling which shall be binding on the arbitration panel.
The arbitration panel shall make the request referred to in the first subparagraph after having heard the parties.
If the European Union or the United Kingdom considers that a request above is to be made, it may make submissions to the arbitration panel to that effect. In such case, the arbitration panel shall submit the request unless the question raised does not concern the interpretation of a concept of EU law, interpretation of a provision of EU law referred to in the Agreement, or does not concern whether the United Kingdom has complied with its obligations to enforce a CJEU judgement.
The arbitration panel shall provide reasons for its assessment. Within 10 days following the assessment, either party may request the arbitration panel to review its assessment, and a hearing shall be organised within 15 days of the request for the parties to be heard on the matter. The arbitration panel shall provide reasons for its assessment.
In the above cases, the time limits laid shall be suspended until the Court of Justice of the European Union has given its ruling. The arbitration panel shall not be required to give its ruling less than 60 days from the date on which the Court of Justice of the European Union has given its ruling.
Compliance with the arbitration panel ruling
The arbitration panel ruling shall be binding on the European Union and the United Kingdom. The European Union and the United Kingdom shall take any measures necessary to comply in good faith with the arbitration panel ruling and shall endeavour to agree on the period of time to comply with the ruling in accordance with the procedure provided.
Reasonable period of time for compliance
No later than 30 days after the notification of the arbitration panel ruling to the European Union and the United Kingdom, the respondent shall, if the panel has ruled in favour of the complainant, notify the complainant of the time it considers it will require for compliance (the “reasonable period of time”).
If there is disagreement between the European Union and the United Kingdom on the reasonable period of time to comply with the arbitration panel ruling, the complainant shall, within 40 days of the notification by the respondent, request the original arbitration panel in writing to determine the length of the reasonable period of time.
Such request shall be notified simultaneously to the respondent. The arbitration panel shall notify its decision on the period for compliance to the European Union and the United Kingdom within 40 days of the date of submission of the request.
In the event of the original arbitration panel, or some of its members, being unable to reconvene to consider a request, a new arbitration panel shall be established. The time limit for notifying the decision shall be 60 days from the date of establishment of the new arbitration panel.
The respondent shall inform the complainant in writing of its progress in complying with the arbitration panel ruling at least 1 month before the expiry of the reasonable period of time.
The reasonable period of time may be extended by mutual agreement of the European Union and the United Kingdom.
Review of measure taken to comply with the panel ruling
The respondent shall notify the complainant before the end of the reasonable period of time of any measure that it has taken to comply with the arbitration panel ruling.
If, at the end of the reasonable period, the complainant considers that the respondent has failed to comply with the arbitration panel ruling, the complainant may request the original arbitration panel in writing to rule on the matter. The arbitration panel shall notify its ruling to the European Union and the United Kingdom within 90 days of the date of submission of the request.
In the event of the original arbitration panel, or some of its members, being unable to reconvene to consider a request above a new arbitration panel shall be established as set out. The time limit for notifying the ruling shall be 60 days from the date of establishment of the new arbitration panel.
Where a case referred to the arbitration panel above raises a question of interpretation of a concept of EU law or a question of interpretation of a provision of EU law referred to in the Agreement, the above provision in relation to where a point of EU law arises shall apply mutatis mutandis.
Temporary remedies in case of non-compliance
If the arbitration panel rules that the respondent has failed to comply with the arbitration panel ruling, at the request of the complainant it may impose a lump sum or penalty payment to be paid to the complainant. In determining the lump sum or penalty payment, the arbitration panel shall take into account the seriousness of the non-compliance and underlying breach of obligation, the duration of the non-compliance and underlying breach of obligation.
If, 1 month after the arbitration panel ruling , the respondent has failed to pay any lump sum or penalty payment imposed on it, or if, 6 months after the arbitration panel ruling referred to the respondent persists in not complying with the arbitration panel ruling the complainant shall be entitled, upon notification to the respondent, to suspend obligations arising from:
- any provision of the Agreement other than those contained in Part Two (Citizens Rights); or
- parts of any other agreement between the European Union and the United Kingdom under the conditions set out in that agreement.
The notification shall specify the provisions which the complainant intends to suspend. Before deciding to suspend parts of an agreement referred to in the second point above the complainant shall first consider whether the suspension of the provision of the Agreement in accordance with the first point would be an appropriate response to the breach.
Any suspension shall be proportionate to the breach of obligation concerned, taking into account the gravity of the breach and the rights in question and, where the suspension is based on the fact that the respondent persists in not complying with the arbitration panel ruling, whether a penalty payment has been imposed on the respondent and has been paid or is still being paid by the latter.
The complainant may implement the suspension at any moment but not earlier than 10 days after the date of the notification, unless the respondent has requested arbitration.
If the respondent considers that the extent of the suspension set out in the notification is not proportionate, it may request the original arbitration panel in writing to rule on the matter. Such request shall be notified to the complainant before the expiry of the 10-day period referred.
The arbitration panel shall notify its ruling to the European Union and the United Kingdom within 60 days of the date of submission of the request. Obligations shall not be suspended until the arbitration panel has notified its ruling, and any suspension shall be consistent with the arbitration panel ruling.
In the event of the original arbitration panel, or some of its members, being unable to reconvene to consider a request above, a new arbitration panel shall be established. In such cases, the period for notifying the ruling shall be 90 days from the date of establishment of the new arbitration panel.
The suspension of obligations shall be temporary and shall be applied only until any measure found to be inconsistent with the provisions of the Agreement has been withdrawn or amended, so as to achieve conformity with the provisions of the Agreement, or until the European Union and the United Kingdom have agreed to otherwise settle the dispute.
Review of any measure taken after temporary remedies
Where the complainant has suspended obligations in accordance with the above provisions or where the arbitration panel has imposed a penalty payment on the respondent, the respondent shall notify the complainant of any measure it has taken to comply with the ruling of the arbitration panel and of its request for an end to the suspension of obligations applied by the complainant or to the penalty payment.
If the European Union and the United Kingdom do not reach an agreement on whether the notified measure brings the respondent into conformity with the provisions of the Agreement within 45 days of the date of submission of the notification, either party may request the original arbitration panel in writing to rule on the matter.
Such request shall be notified simultaneously to the other party. The arbitration panel ruling shall be notified to the European Union and the United Kingdom and to the Joint Committee within 75 days of the date of submission of the request.
If the arbitration panel rules that the respondent has brought itself into conformity with the Agreement, or if the complainant does not, within 45 days of the submission of the notification referred to in paragraph 1, request that the original arbitration panel rule on the matter:
- the suspension of obligations shall be terminated within 15 days of either the ruling of the arbitration panel or the end of the 45-day period;
- the penalty payment shall be terminated on the day after either the ruling of the arbitration panel or the end of the 45-day period.
In the event of the original arbitration panel, or some of its members, being unable to reconvene to consider a request, a new arbitration panel shall be established. The period for notifying the ruling shall , in that case,be 90 days from the date of establishment of the new arbitration panel.
Where a case referred to the arbitration panel raises a question of interpretation of a concept of EU law or a question of interpretation of a provision of EU law referred to in the Agreement, the above provisions shall apply mutatis mutandis.
Arbitration panel decisions and rulings
The arbitration panel shall make every effort to take decisions by consensus. Where, nevertheless, a decision cannot be arrived at by consensus, the matter at issue shall be decided by majority vote. However, in no case dissenting opinions of members of an arbitration panel shall be published.
Any ruling of the arbitration panel shall be binding on the European Union and the United Kingdom. The ruling shall set out the findings of fact, the applicability of the relevant provisions of the Agreement, and the reasoning behind any findings and conclusions. The European Union and the United Kingdom shall make the arbitration panel rulings and decisions publicly available in their entirety, subject to the protection of confidential information.
Members of an arbitration panel
The members of an arbitration panel shall be independent, shall serve in their individual capacity and shall not take instructions from any organisation or government, and shall comply with the Code of Conduct set out in Part B of Annex IX. The Joint Committee may amend that Code of Conduct.
The members of an arbitration panel shall, as from the establishment thereof, enjoy immunity from legal proceedings in the European Union and the United Kingdom with respect to acts performed by them in the exercise of their functions on that arbitration panel.
CONSISTENT INTERPRETATION AND APPLICATION
References to the Court of Justice concerning Part Two (Citizens)
Where, in a case which commenced at first instance within 8 years from the end of the transition period before a court or tribunal in the United Kingdom, a question is raised concerning the interpretation of Part Two (Citizens Rights) of the Agreement, and where that court or tribunal considers that a decision on that question is necessary to enable it to give judgment in that case, that court or tribunal may request the Court of Justice of the European Union to give a preliminary ruling on that question.
However, where the subject matter of the case before the court or tribunal in the United Kingdom is a decision on an application made pursuant for residency rights , a request for a preliminary ruling may be made only where the case commenced at first instance within a period of 8 years from the date from the operative date.
The Court of Justice of the European Union shall have jurisdiction to give preliminary rulings on requests. The legal effects in the United Kingdom of such preliminary rulings shall be the same as the legal effects of preliminary rulings given pursuant to the EU Treaties in the European Union and its Member States.
In the event that the Joint Committee adopts a decision extending the transition period, the period of eight years shall be automatically extended by the corresponding number of months by which the transition period is extended.
Monitoring of Provisions on Citizens Rights
In the United Kingdom, the implementation and application of Part Two shall be monitored by an independent authority (the “Authority”) which shall have powers equivalent to those of the European Commission acting under the Treaties to conduct inquiries on its own initiative concerning alleged breaches by the administrative authorities of the United Kingdom and to receive complaints from European Union citizens and their family members for the purposes of conducting such inquiries.
The Authority shall also have the right, following such complaints, to bring a legal action before a competent court or tribunal in the United Kingdom in an appropriate judicial procedure with a view to seeking an adequate remedy.
The European Commission and the Authority shall each annually inform the specialised Committee on citizens’ rights) on the implementation and application of the Citizens rights provisions in the European Union and in the United Kingdom, respectively. The information provided shall, in particular, cover measures taken to implement or comply and the number and nature of complaints received.
The Joint Committee shall assess, no earlier than 8 years after the end of the transition period, the functioning of the Authority. Following such assessment, it may decide, in good faith, that the United Kingdom may abolish the Authority.
Jurisdiction of the Court of Justice of the European Union concerning certain provisions of Part Five (Financial Provisions)
The EU Treaty provisions regarding enforcement of EU law and preliminary references to the European Courts, shall apply in respect of the interpretation and application of applicable EU law referred in relation to post 2020 wind down, outstanding financial matters and participation in EU Programmes.
Procedures before the Court of Justice of the European Union
Where a court or tribunal of a Member State refers a question concerning the interpretation of the Agreement to the Court of Justice of the European Union for a preliminary ruling, the decision of the national court or tribunal containing that question shall be notified to the United Kingdom.
The provisions of EU law governing procedures brought before the Court of Justice of the European Union shall apply mutatis mutandis to requests for a ruling of the Court of Justice of the European Union.
The provisions of EU law governing the procedure before the Court of Justice of the European Union shall apply in respect of the proceedings before the Court of Justice of the European Union and requests for preliminary rulings.
In the cases brought before the Court of Justice of the European Union in accordance with the above (and certain other provisions)
- the United Kingdom may participate in the proceedings before the Court of Justice of the European Union in the same way as a Member State;
- lawyers authorised to practise before the courts or tribunals of the United Kingdom shall be entitled to represent or assist any parties to such proceedings before the Court of Justice of the European Union; in such cases those lawyers shall in every respect be treated as lawyers authorised to practise before courts of Member States representing or assisting a party before the Court of Justice of the European Union.
Participation of the Commission in cases pending in the UK
Where the consistent interpretation and application of the Agreement so requires, the European Commission may submit written observations to the courts and tribunals of the United Kingdom in pending cases where the interpretation of the Agreement is concerned. The European Commission may, with the permission of the court or tribunal in question, also make oral observations. The European Commission shall inform the United Kingdom of its intention to submit observations before formally making such submissions.
Regular dialogue and exchange of information
In order to facilitate the consistent interpretation of the Agreement and in full deference to the independence of courts, the Court of Justice of the European Union and the United Kingdom’s highest courts shall engage in regular dialogue, analogous to the dialogue in which the Court of Justice of the European Union engages with the highest courts of the Member States.
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