Saturday, 20 August 2016

Which data protection and consumer law applies to Amazon? Comments on the VKI v Amazon judgment



Lorna Woods, Professor of Internet Law, University of Essex

The recent CJEU judgment in VKI v Amazon concerns jurisdiction both in the context of conflict of laws (applicable consumer laws) and the Data Protection Directive.  Essentially, the Court of Justice had to decide which Member State’s data protection law should apply where goods are sold across national borders but within the EU. In this, it forms part of a stream of case law (both decided and pending), dealing with the powers of states (and their institutions) to protect those within their boundaries notwithstanding the digital internal market.

Facts

The case concerned Amazon, a well-known large company engaged in on-line selling. It has a branch established in Luxembourg.  It has a domain name ending ‘.de’ and there is a German language page.  It concludes sales with customers in Austria. The company has no registered address in Austria.  Whenever a customer buys goods via Amazon the transaction is governed by Amazon’s unilaterally imposed standard terms and conditions. One term in the agreement is that the law applicable to the contract is that of Luxembourg. 

A consumer protection body in Austria (VKI) sought to challenge this: Austrian law provides higher protection for the consumer than the equivalent Luxembourgish law and it sought to injunct Amazon on the basis of Directive 2009/22/EC on injunctions for the protection of consumers’ interests through an action brought before the Austrian courts. Amazon countered that it has no legal connection with Austria – it is not established there.  While there were questions regarding the applicable law and the fairness of the jurisdiction clause in the contract in the light of the Unfair Contract Terms Directive, there was another issue concerning data protection. There were clauses in Amazon’s standard terms and conditions which indicated that data might be exchanged with credit-risk assessment and financial services companies in Germany and Switzerland.  Again VKI argued that Austrian data protection rules should apply.

Questions Referred

While on the face of it, the matter might seem to be one of contract law therefore governed by the Rome I Regulation on the law applicable to contractual obligations, the form of relief sought – the injunction – might seem to bring the question within the Rome II Regulation, which regulates the law applicable to non-contractual obligations – a fact which might affect the outcome in the case.  The national court asked whether an action for an injunction fell within Rome II and if so, where the damage might said to have taken place so as determine jurisdiction.  Irrespective of the outcome to that question, the referring court also asked about the impact of the Unfair Contract Terms Directive on the jurisdiction clause. It likewise also wanted to know whether the processing of data should be regulated by Luxembourg alone, or must the processor ‘also comply with the data protection rules of those Member States to which its commercial activities are directed?’

Judgment

The ECJ dealt with the questions on Rome I and II together.  It noted that they should be interpreted consistently with one another, as well as the Brussels I Regulation (which concerns the separate question of which country’s court has jurisdiction in cross-border cases).  The Court referred to its previous case law in relation to the previous Brussels Convention, and the Brussels I Regulation replacing the Convention, to conclude that an action for injunction within the terms of Directive 2009/22/EC (on the protection of consumers’ interests) falls within the meaning of a non-contractual obligation for the purposes of Rome II.  Article 6 of the Rome II Regulation deals with unfair competition.  In that circumstance, the law applicable is that ‘of the country where competitive relations or the collective interests of consumers are, or are likely to be, affected’.  The Court followed the Advocate General (Opinion, para 73) to hold that Article 6(1) covers the use of unfair terms inserted in standard terms and conditions, as ‘this is likely to affect the collective interests of consumers as a group and hence to influence the conditions of competition on the market’ (para 42). Here the relevant country is that where the consumers to whom the undertaking directs its activities reside and who are protected by the relevant consumer protection body (para 43).

Article 4(3) of the Rome II Regulation states that the law of another country applies if it is clear that the tort is manifestly more closely connected with it.  The ECJ approved the approach of the Advocate General (para 77) where he advised that Article 4(3) is not well suited to unfair competition. Article 6 is aimed at protecting collective interests and cannot be displaced by individual agreement (para 45).  Allowing the term of a contract to constitute ‘closer connection’ for the purposes of Article 4(3) would mean that such parties would be able to avoid the conditions for ‘freedom of choice’ set down in Article 14 Rome II.

The question of which law applies to the assessment of the unfairness of the contractual terms, however, falls under Rome I, whether or not it applies to a collective or individual action.

The Court then considered the Unfair Contract Terms Directive (Directive 93/13). That Directive contains the principle that a contractual term which has not been individually negotiated – that is, drafted in advance by the seller/supplier - must be regarded as unfair if it causes a significant imbalance to the detriment of the consumer. The Court agreed with the Advocate General (Opinion para 84) that the terms in issue here fell within that definition (para 63). The question of unfairness is to be determined on the facts by the national court within the scope of criteria determined by the Court of Justice. Since choice of law clauses are in principle permissible, such clauses are only unfair if its wording or context creates an imbalance – so if it is not drafted in intelligible language or if it seeks to deprive consumers of protections from which it would not be possible to derogate.  Here, this means that in relation to an Austrian consumer, the national court will ‘have to apply those Austrian statutory provisions which, under Austrian law, cannot be derogated from by agreement’ (para 70).

The Court then turned to Article 4 of the Data Protection Directive. Under Article 4, each Member State regulates processing carried out in the context of activities of an establishment in that Member State. Essentially the question is whether Amazon was established in Austria. The Court referred to its recent Weltimmo judgment, discussed here, which ruled that an undertaking does not need to have a branch or establishment.  Rather, it is a question of the stability of the arrangement and the effective exercise of activities (para 77) that is important.  Further, Article 4 does not require that the processing is carried out by the undertaking itself; the test is whether processing is carried out in the context of its activities (para 78).  This is a question of fact for the national court.

Comment

In terms of the importance of this judgment, we should note that the facts in issue are not uncommon – many on-line businesses have headquarters in one Member State but conclude contracts across multiple Member States. 

As regards the questions relating to applicable laws generally, we are now in a situation where national courts may have to assess questions pertaining to injunctions according to a different law from that relating to the contract itself.  This is not surprising, given case law in other fields, but it is the first confirmation of this point in the e-commerce context.  As an aside, it is also the first judgment on the Directive on injunctions for the protection of consumers’ interests.  It is worth noting that the Court seemed critical of attempts to bypass the protection in Article of 6 Rome II through the notion of ‘manifestly closer connection’ in Article 4(3).  It also specifically excluded the choice of law clause in the agreement as a determining factor in this regard too.

Perhaps the most interesting aspect is, however, the data protection aspect.  The Court did not go into much detail (perhaps signalling behind the scenes disagreement) and there are some curious silences as to some points touched upon by the Advocate General.  The Advocate General had in fact suggested that Article 4 had a ‘dual role’ (Opinion para 110).  So while Weltimmo might apply to determine applicable law, the broad approach to ‘establishment’ found in GoogleSpain to determine the outer territorial limit of the Data Protection Directive did not apply to the intra-EU setting.  The driver for the decision in GoogleSpain was a desire to ensure that the Data Protection Directive applied at all; it was therefore relevant to external processors (Opinion, para 124).  In this case, if the Austrian laws did not apply then the laws of one of the other Member States would and so the extensive approach would not be necessary.  This distinction was an innovation on the part of the Advocate General; it was certainly not visible in Weltimmo in which the Court relied on its reasoning in GoogleSpain, and nor was it apparent from GoogleSpain.  Further, the Advocate General seemed to be more stringent about finding ‘establishment’ than the Court in Weltimmo.  For example, the fact that Amazon may provide an aftersales service in Austria on its own was insufficient in his view (Opinion, paras 121 and 125); he also discounted the possibility that the accessibility of a website was likewise insufficient for this purpose (Opinion, paras 117 and 120). 

Against this background, the silence of the ECJ on the internal/external point is striking, especially given the repeated references to the Opinion through the rest of its judgment.  So is its silence on the subject of GoogleSpain. The Court’s reasoning is grounded only on Weltimmo.  On the one hand, we could argue that the Court has not agreed with the distinction put forward by the Advocate General, but by not applying GoogleSpain directly here, it has not ruled it out either. Note that the Article 29 Working Party (the advisory body set up by the data protection Directive) had applied the extensive interpretation from GoogleSpain in its updated Opinion 8/2010. The Court here also gave no further guidance on the topic of establishment, taking convenient refuge no doubt in the point that its role is to interpret EU law and not to assess facts.


Photo credit: www.creativeintent.co.uk 

Friday, 19 August 2016

Commission Opinion of 1 June 2016 regarding the Rule of Law in Poland: Full text now available




Professor Laurent Pech

Rule of law aficionados among the readers of this blog may be interested in getting access to the full text of the yet unpublished Commission Opinion regarding the Rule of Law in Poland adopted on 1 June 2016, which is published as an Annex to this blog post.

To enable non-experts to quickly understand what is at stake, this post will briefly describe the instrument on the basis of which the Commission has adopted this Rule of Law Opinion before succinctly recalling why the Commission deemed it necessary to formalise its concerns as regards the rule of law in Poland. A short summary of the Commission’s rationale used to turn down my initial request for access to this Opinion under Regulation 1049/2001 (concerning public access to EU documents) will also be provided.

(1) The EU’s Rule of Law Framework in a nutshell

To deal with what a number of EU officials have described as an increasing number of rule of law crises, the European Commission adopted a new framework to strengthen the rule of law in March 2014. The Commission explicitly designed this new instrument to deal with situations where ‘a systemic threat to the rule of law’ may be detected in a Member State. Soon afterwards, Frans Timmermans was appointed First Vice-President of the European Commission in charge of, inter alia, the Rule of Law.

The Commission’s rule of law framework takes the form of an early warning tool whose primary purpose is to enable the Commission to enter into a structured dialogue with the relevant Member State. The overall aim is to prevent any emergent systemic threat to the rule of law from developing into a situation where there is a clear risk of a serious breach of EU values laid down in Article 2 TEU. This procedure is supposed to precede the eventual triggering of what is often (albeit misleadingly) labelled as the ‘nuclear option’ laid down in Article 7 TEU (namely the suspension of a Member State’s rights for violating EU values), hence the informal label of ‘pre-Article 7 procedure’ given to the 2014 Framework.

With respect the mechanics of this new ‘pre-Article 7 procedure’, there is a three-stage process initiated and conducted by the Commission: (1) assessment; (2) recommendation and (3) follow up. During the first stage of the procedure, the Commission may decide to send a ‘rule of law opinion’ to the national government of the Member State concerned if there are clear indications of a systemic threat to the rule of law. In the situation where the matter has not been satisfactorily resolved, the Commission may then adopt a ‘Rule of Law Recommendation’ and indicate ways and measures to resolve the situation within a prescribed deadline. Finally, the last phase foreseen by the framework consists of the Commission’s monitoring of the implementation of any recommendation previously adopted. Should there be no satisfactory implementation, the Commission would then have the possibility of triggering the Article 7 TEU mechanism.

(2) First activation of the Rule of Law Framework against Poland

On 13 January 2016, Frans Timmermans announced the Commission’s decision to carry out a preliminary assessment of the situation of the Polish Constitutional Tribunal under the Rule of Law Framework. This was the very first time this new instrument had been activated. The primary justification for this unprecedented step was the fact that binding rulings of the Polish Constitutional Tribunal were no longer respected by the government - ‘a serious matter in any rule of law-dominated state’ according to the First Vice-President of the European Commission. A period of intensive but confidential dialogue between the Commission and Polish government followed. In the absence of any concrete steps taken by the Polish government to address its concerns, the Commission deemed it necessary to formalise its assessment of the situation in Poland by adopting a ‘Rule of Law Opinion’ on 1 June 2016. The Polish government was then invited to submit observations with the view of satisfactorily resolving the Commission’s concerns within a reasonable time. The text of the Commission Opinion was however not publicly released at the time. It was rather announced via a press release.

(3) Application for access to the full text of the Commission Opinion

My initial request to gain access to the full text was rejected by the Commission on the ground that the disclosure of the Commission Opinion of 1 June 2016 ‘would undermine the protection of the purpose of the ongoing investigation’ as any disclosure ‘at this point in time would affect the climate of mutual trust between the authorities of the Member state and the Commission, which is required to enable them to find a solution and prevent the emergence of a system threat to the rule of law’ (my application was lodged on 7 June 2016 and turned down on 18 July 2016). Partial access was also rejected on the same ground.

This reasoning is not unreasonable. The Commission’s Communication regarding the Rule of Law Framework itself provides that ‘while the launching of the Commission assessment and the sending of its opinion will be made public by the Commission, the content of the exchanges with the Member State concerned will, as a rule, be kept confidential, in order to facilitate quickly reaching a solution.’ While the reference to ‘exchanges’ may be understood as suggesting that the Commission did not intend to keep any Opinion itself confidential but rather the mere ‘exchanges’ between itself and a relevant government, one may accept that a certain degree of confidentiality could in principle help at this particular juncture.

That being said, the Commission’s initial refusal to disclose the full text of the Rule of Law Opinion of 1 June 2016 was difficult to reconcile with the full disclosure on 11 March 2016 of the Venice Commission’s Opinion on amendments to the Act of 25 June 2015 on the Constitutional Tribunal of Poland. It also meant, more problematically, that there could be no external scrutiny of the Commission’s action. It also deprived Polish citizens and their national elected representatives of the opportunity to discuss the Commission’s diagnosis and eventually work out solutions to address the Commission’s concerns alongside their government.

Be that at it may, the Commission’s subsequent decision to publish a Rule of Law Recommendation on 27 July 2016 led me to ask the Commission to review their initial refusal to disclose the Opinion adopted on 1 June 2016. I argued inter alia that the period of ‘mutual trust’ had neither led the Polish government to cooperate in good faith, nor produce the expected results required not only by the European Commission but also the Venice Commission. I furthermore emphasised that no harm would result from the disclosure of the Opinion as far as the conduct of the Commission’s investigation is concerned following the public release of the Commission’s Rule of Law Recommendation.

Having reviewed my application, the Secretariat General of the Commission accepted the disclosure of the full text of the Opinion on the basis that the exception laid down in Article 4(2) of Regulation 1049/2001 no longer applied following ‘the Commission’s issuance, on 27 July 2016, of a Recommendation regarding the rule of law in Poland.’

Readers familiar with the Commission Recommendation of 27 July 2016 will quickly detect that the Recommendation closely reflects the content of the Opinion. It does however put more emphasis on the issue of the effective functioning of the Polish Constitutional Tribunal following inter alia the adoption of the law on the Constitutional Tribunal adopted by the Polish Parliament on 22 July 2016.
   
Professor Kochenov and I are planning to offer readers of this blog a more comprehensive analysis of the Commission’s Rule of Law Framework as applied in the case of Poland in November, at which point the deadline for implementing the Commission’s recommendations will have passed (there are clear indications that the Polish government has opted for confrontation over compromise with the EU and will not implement them). Meanwhile, interested readers may find this special rule of law issue of the Journal of Common Market Studies, and the articles contained therein, of special interest.

Barnard & Peers: chapter 8
Photo credit: www.dw.com

Annex

COMMISSION OPINION of 1.6.2016 regarding the Rule of Law in Poland

1) Introduction

1. This opinion sets out the concerns of the European Commission in regard of the rule of law in Poland and provides an opportunity for the Republic of Poland to respond to these concerns.

2. The European Union is founded on a common set of values enshrined in Article 2 of the Treaty on European Union, which include in particular the respect for the rule of law. The Commission, beyond its task to ensure the respect of EU law, is also responsible, together with the European Parliament, the Member States and the Council, for guaranteeing the common values of the Union.

3. For this reason the Commission, taking account of its responsibilities under the Treaties, adopted on 11 March 2014 a Communication "A new EU Framework to Strengthen the Rule of Law" [1 COM(2014) 158 final, hereinafter "the Communication".] This Rule of Law Framework sets out how the Commission will react should a threat to the rule of law emerge in a Member State of the Union and explains the principles which the rule of law entails.

4. The Commission considers after a careful assessment of the facts, that the following issues in Poland raise serious concerns in regard of these principles.

Rule of Law Framework

5. The Rule of Law Framework provides guidance for a dialogue between the Commission and the Member State concerned to prevent the escalation of systemic threats to the rule of law.

6. The purpose of this dialogue is to enable the Commission to find a solution with the Member State concerned in order to prevent the emergence of a systemic threat to the rule of law that could develop into a "clear risk of a serious breach" which would potentially trigger the use of the 'Article 7 TEU Procedure'. Where there are clear indications of a systemic threat to the rule of law in a Member State, the Commission can initiate a dialogue with that Member State under the Rule of Law Framework.

7. Case law of the Court of Justice of the European Union and of the European Court of Human Rights, as well as documents drawn up by the Council of Europe, building notably on the expertise of the Venice Commission, provides a non-exhaustive list of these principles and hence defines the core meaning of the rule of law as a common value of the Union in accordance with Article 2 of the Treaty on European Union (TEU). Those principles include legality, which implies a transparent, accountable, democratic and pluralistic process for enacting laws; legal certainty; prohibition of arbitrariness of the executive powers; independent and impartial courts; effective judicial review including respect for fundamental rights; and equality before the law2. [2 See COM(2014) 158 final, section 2, Annex I.] In addition to upholding those principles and values, State institutions also have the duty of loyal cooperation.

8. The Framework is to be activated in situations where the authorities of a Member State are taking measures or are tolerating situations which are likely to systematically and adversely affect the integrity, stability or the proper functioning of the institutions and the safeguard mechanisms established at national level to secure the rule of law3. [3 See para 4.1 of the Communication.]  The purpose is to address threats to the rule of law which are of a systemic nature4. [4 See para 4.1 of the Communication.] The political, institutional and/or legal order of a Member State as such, its constitutional structure, separation of powers, the independence or impartiality of the judiciary, or its system of judicial review including constitutional justice where it exists, must be threatened5 . [5 See para 4.1 of the Communication.]The Framework is to be activated in particular in situations when national "rule of law safeguards" do not seem capable of effectively addressing those threats.

9. The Rule of Law Framework has three stages:

· Commission assessment: in this stage the Commission collects and examines all the relevant information and assesses whether there are clear indications of a systemic threat to the rule of law. If, on this evidence, the Commission believes that there is a systemic threat to the rule of law, it will initiate a dialogue with the Member State concerned, by sending a "rule of law opinion", substantiating its concerns. The opinion could be the result of an exchange of correspondence and meetings with the relevant authorities and be followed by further exchanges.
· Commission Recommendation: in a second stage, if the matter has not been satisfactorily resolved, the Commission can issue a "rule of law recommendation" addressed to the Member State. In this case, the Commission would recommend that the Member State solves the problems identified within a fixed time limit, and inform the Commission of the steps taken to that effect. The Commission will make public its recommendation.
· Follow-up to the Commission Recommendation: in a third stage, the Commission will monitor the follow-up given by the Member State to the recommendation. If there is no satisfactory follow-up within the time limit set, the Commission can resort to the 'Article 7 Procedure'.

The entire process is based on a continuous dialogue between the Commission and the Member State concerned.

Factual context  

10 In November 2015, the Commission became aware of an ongoing dispute in Poland concerning the composition of the Constitutional Tribunal, as well as the shortening of the mandates of its current President and Vice-President. The Constitutional Tribunal rendered two judgments on these matters, on 3 and 9 December 2015.

11. In addition, the Commission noted that the Sejm adopted on 22 December 2015 a law amending the law on the Constitutional Tribunal, which concerns the functioning of the Tribunal as well as the independence of its judges6. [6 Law of 22 December 2015 amending the Law of 25 June 2015 on the Constitutional Tribunal. The amending Law was published in the Official Journal on 28 December; item 2217.]

12. In a letter of 23 December 2015 to the Polish Government7, [7 Letter of 23 December 2015 from First Vice President Timmermans to Minister of Foreign Affairs Mr Waszczykowski and Minister of Justice Mr Ziobro.] the Commission asked to be informed about the constitutional situation in Poland, including the steps envisaged by the Polish authorities with respect to the above-mentioned two judgements of the Constitutional Tribunal. As regards the amendments contained in the Law of 22 December 2015 on the Constitutional Tribunal, First Vice President Timmermans stated he would expect that this law is not finally adopted or at least not put into force until all questions regarding the impact of this law on the independence and the functioning of the Constitutional Tribunal have been fully and properly assessed. The Commission also recommended the Polish authorities to work closely with the Council of Europe's Venice Commission8. [8 European Commission for Democracy through Law (Venice Commission)].

13. On 23 December 2015 the Polish Government asked for an opinion of the Venice Commission on the Law of 22 December 2015. However, the Polish Parliament did not await this opinion before taking further steps, and the Law was published in the Official Journal and entered into force on 28 December 2015.

14. On 30 December 2015 the Commission wrote to the Polish Government9 [9 Letter of 30 December 2015 from First Vice President Timmermans to Minister of Foreign Affairs Mr Waszczykowski and Minister of Justice Mr Ziobro.] to seek additional information about the proposed reforms to the governance of Poland's Public State Broadcasters. First Vice President Timmermans asked the Polish Government how relevant EU law and the need to promote media pluralism were taken into account in the preparation of the new "small media law".

15. On 31 December 2015, the Polish Senate adopted the "small media law" concerning the management and supervisory boards of the Polish public television broadcaster and public radio broadcaster. The new law modifies the rules for the appointment of the Management and Supervisory Boards of the public service broadcasters, putting them under the control of the Treasury Minister, rather than an independent body. The new law also provided for the immediate dismissal of the existing Supervisory and Management Boards.

16. On 7 January 2016, the Commission received a response from the Polish Government10 [10 letter of 7 January 2016 from Undersecretary of State Mr Stepkowski to First Vice President Timmermans] on the letter on the media law denying any adverse impact on media pluralism. On 11 January, the Commission received a response from the Polish Government on the Constitutional Tribunal reform11. [11 letter of 11 January 2016 from Minister of Justice Mr Ziobro to First Vice President Timmermans] These responses did not remove existing concerns.

17. On 13 January 2016, the College of Commissioners held a first orientation debate in order to assess the situation in Poland. The Commission decided to examine the situation under the Rule of Law Framework and mandated First Vice President Timmermans to enter into a dialogue with the institutions of the Republic of Poland in order to clarify the issues at hand and identify possible solutions.

18. On the same day, First Vice-President Timmermans wrote to the Polish Government12 [12 Letter of 13 January 2016 from First Vice President Timmermans to Minister of Justice Mr Ziobro.] informing the Government that the Commission is examining the situation under the Rule of Law Framework and wished to enter into a dialogue with the institutions of the Republic of Poland in order to clarify the issues at hand and identify possible solutions.

19. On 19 January 2016 the Commission wrote to the Polish Government13 [13 Letter of 19 January 2016 from Commissioner Oettinger to Minister of Justice Mr Ziobro.] offering to contribute expertise and discuss matters related to the new media law.

20. On 19 January 2016 the Polish Government wrote to the Commission14 [14 Letter of 19 January 2016 from Minister of Justice Mr Ziobro to First Vice President Timmermans.] setting out its views on the dispute concerning the appointment of judges, referring inter alia to a constitutional custom relating to the appointment of judges. Regarding the amendment to the Act on the Constitutional Tribunal this letter sets out its positive effects.

21. On 1 February 2016 the Commission wrote to the Polish Government15 [15 Letter of 1 February 2016 from First Vice President Timmermans to Minister of Justice Mr Ziobro.] noting that the judgements of the Constitutional Tribunal on the appointment of judges have still not been implemented. The letter also underlines the need to further examine the amendment to the Act on the Constitutional Tribunal, in particular the "combined effect", requesting more detailed explanations. The letter also requests information about other laws which have been adopted recently, in particular the new Civil Service Act, the Act amending the law on the Police and certain other laws, as well as the Law on the Public Prosecution Service, and about legislative reforms which are being envisaged, notably further reforms of the media legislation.

22. On 29 February 2016 the Polish Government wrote to the Commission16 [16 Letter of 29 February 2016 from Minister of Foreign Affairs Mr Waszczykowski to First Vice President Timmermans.] providing further clarifications on the mandate of the President of the Constitutional Tribunal. The letter clarifies that the Tribunal's judgment of 9 December 2015 states that the interim provisions of the amending law that provided for ending the mandate of the President were pronounced unconstitutional and lost their legal effect. As a result, the current President of the Tribunal will continue to exercise his mandate pursuant to the old legislative provisions until his mandate expires on 19 December 2016. The letter also states that the mandate of the next President will be 3 years long. The letter furthermore requests clarifications as to what the Commission means by insisting that the binding and final judgments of the Constitutional Tribunal have still not been implemented as well as clarifications why according to the Commission the resolutions electing three judges of the Constitutional Tribunal on 2 December 2015 run counter to the Tribunal's subsequent judgement.

23. On 3 March 2016 the Commission wrote to the Polish Government17, [17 Letter of 3 March 2016 from First Vice President Timmermans to Minister of Foreign Affairs Mr Waszczykowski.] providing clarifications concerning the issue of the appointment of judges as requested by the Polish Government in the letter of 29 February 2016. Regarding the amendment to the Act on the Constitutional Tribunal the letter notes that according to a preliminary assessment certain amendments, both individually and taken together, make more difficult the conditions under which the Constitutional Tribunal may review the constitutionality of newly passed laws and requests more detailed explanations on this. The letter also asks for information about other laws which have been adopted recently and further legislative reforms which are being envisaged.

24. On 9 March 2016 the Constitutional Tribunal ruled that the Law of 22 December 2015 is unconstitutional. That judgment has so far not been published in the Official Journal.

25. On 11 March 2016 the Venice Commission adopted its opinion "on amendments to the Act of 25 June 2015 on the Constitutional Tribunal"18 . [18 Opinion no. 833/2015, CDL-AD(2016)001.]

26. On 21 March 2016, Minister of Foreign Affairs of Poland Mr Waszczykowski wrote to First Vice President Timmermans inviting him to a meeting in Poland to assess the dialogue carried out so far between the Polish Government and the Commission and to determine how to continue it in an impartial, evidence-based and cooperative way.

27. On 31 March 2016 Secretary of State for European Affairs Mr Szymanski wrote to FVP Timmermans with recent information and legal assessments regarding the dispute around the Constitutional Tribunal in Poland. A note was included from Undersecretary of State Mr Stępkowski "Polish Constitutional Tribunal and the current controversy around it".

28. On 5 April 2016, meetings took place in Warsaw between First Vice-President Timmermans and Minister of Foreign Affairs Mr Waszczykowski, Minister of Justice Mr Ziobro, Deputy Prime Minister Mr Morawiecki, as well as with the President and the Vice-President of the Constitutional Tribunal, Mr Rzepliński and Mr Biernat.

29. Following these meetings, several meetings took place between the Polish Government, represented by the Ministry of Justice, and the Commission.

30. Following the judgment of 9 March 2016, the Constitutional Tribunal started again adjudicating cases. The Polish Government did not participate in these proceedings and the judgements rendered by the Constitutional Tribunal since 9 March 2016 have so far not been published by the Government in the Official Journal19. [19 Since 9 March 2016 nine judgments have been rendered by the Constitutional Tribunal which have not been published.]

31. On 6 April 2016 the President of the Constitutional Tribunal informed the public that he had received a letter from Minister of Justice Mr Ziobro, dated 5 April 2016, stating inter alia that the Tribunal is legally required to proceed in accordance with the provisions of the Law of 22 December 2015, that any attempts by the Tribunal to act outside the framework of the Constitution and the Law of 22 December 2015 will not be granted legitimacy by any form of participation therein from the Minister of Justice in his capacity as Prosecutor-General, and that the Prosecutor-General's role is to monitor the lawfulness of such attempts.

32. On 20 April 2016 a meeting took place between the Commission and representatives of the Network of Presidents of Supreme Judicial Courts of the EU and of the Conference of European Constitutional Courts to discuss about the situation in Poland. The President of the Network of Presidents, Chief Justice Denham, contributed in writing to this meeting.

33. On 26 April 2016, the General Assembly of the Supreme Court of Poland adopted a resolution attesting that the rulings of the Constitutional Tribunal are valid, even if the Polish Government refuses to publish them in the Official Journal.

34. On 28-29 April 2016, a delegation of the Venice Commission visited Warsaw to discuss the recent amendments to the Law on the Police and certain other laws20, [20 Law of 15 January 2016 amending the Law on Police and other laws, published in Official Journal on 4 February 2016, item 147.] in view of delivering an opinion on 10-11 June 2016.

35. An expert group was composed in the Sejm to help prepare a new law on the Constitutional Tribunal. On 29 April 2016 a group of members of the Sejm submitted to the Sejm a legislative proposal for a new Constitutional Tribunal Act with a view to replacing the current Act. The proposal contains several provisions which were already criticised by the Venice Commission in its opinion of 11 March 2016 and declared unconstitutional by the Tribunal in its ruling of 9 March 2016. This includes the requirement of a two-thirds majority for adopting decisions for "abstract" constitutional review of newly adopted laws.

36. On 5 May 2016 the President of the Constitutional Tribunal Mr Rzepliński informed the public that he had received a letter from the Minister of Finance of Poland Mr Szałamacha, dated 2 May 2016, calling for restraint in making public statements on the current situation around the Tribunal until 13 May 2016 as on that date a credit rating agency would take a decision on its rating for Poland.

37. On 24 May 2016, First Vice-President Timmermans had meetings in Warsaw with Prime Minister Ms Szydło, with the President and the Vice President of the Polish Constitutional Tribunal Mr Rzepliński and Mr Biernat, with the Ombudsman Mr Bodnar, with the Mayor of the City of Warsaw Ms Gronkiewicz-Waltz and with members of the opposition parties in the Sejm. On 26 May 2016 First Vice-President Timmermans had a meeting in Brussels with Deputy Prime Minister Mr Morawiecki. Subsequently, further exchanges and meetings took place between the Commission and the Polish government.

38. However, despite the detailed and constructive nature of the exchanges between the Commission and the Polish Government, they were not able to resolve the concerns of the Commission.

2) Scope of the opinion

39. The present opinion sets out the current concerns of the Commission in regard of the rule of law in Poland concerning the following issues:

· the appointment of judges of the Constitutional Tribunal and the implementation of the judgments of the Constitutional Tribunal of 3 and 9 December 2015 relating to these matters 21; [21 The Commission considers the issue of the shortening of the mandate of the President and the Vice-President of the Constitutional Tribunal as resolved in view of the judgment of the Tribunal of 9 December 2015 and the clarifications received from the Polish Government.]
· the Law of 22 December 2015 amending the Law on the Constitutional Tribunal, the judgment of the Constitutional Tribunal of 9 March 2016 relating to this law, as well as the respect of the judgments rendered by the Constitutional Tribunal since 9 March 2016;
· the effectiveness of Constitutional review of new legislation, in particular the new media law, and certain other laws which have been adopted and enacted in 2016.

3) Appointment of judges of the Constitutional Tribunal

I. The Facts

40. Ahead of the general elections for the Sejm of 25 October 2015, on 8 October the outgoing legislature nominated five persons to be 'appointed' as judges of the Constitutional Tribunal by the President of the Republic. Three judges would take seats vacated during the mandate of the outgoing legislature while two would take seats vacated during that of the incoming legislature which commenced on 12 November 2015.

41. On 19 November 2015, the new legislature, through an accelerated procedure, amended the Law on the Constitutional Tribunal, introducing the possibility to annul the judicial nominations made by the previous legislature and to nominate five new judges. The amendment also shortened the terms of office of the President and Vice-President of the Tribunal from nine to three years, with the current terms coming to an automatic end 2 within three months of the amendment's adoption. On 25 November 2015 the new legislature passed a motion annulling the five nominations by the previous legislature and on 2 December nominated five new judges.

42. The Constitutional Tribunal was seized concerning the decisions of both the previous legislature and the incoming legislature. The Tribunal delivered two judgements, on 3 and 9 December 2015.

43. In its judgment of 3 December22, [22 K 34/15] the Constitutional Tribunal ruled inter alia that the previous legislature of the Sejm was entitled to nominate three judges replacing the judges whose terms expired on 6 November 2015. At the same time, the Tribunal clarified that the Sejm had not been entitled to elect the judges replacing those whose term expired in December. The judgment also specifically referred to the obligation for the President of the Republic to immediately take the oath from a judge elected by the Sejm.

44. On 9 December23, [23 K 35/15.] the Constitutional Tribunal inter alia invalidated the legal basis for the nominations by the new legislature of the Sejm of the three judges for the vacancies opened up on 6 November 2015 for which the previous legislature had already lawfully nominated judges. In this judgment the Constitutional Tribunal also considered that a reduction of the duration of the mandate of the President and Vice-President from nine to three years was constitutional only in so far as the reduction applied to future mandates and as long as a renewal of the mandate would not be possible.

45. Despite these judgments, the three judges that have been nominated by the previous legislature have not taken up their function of judge in the Constitutional Tribunal and their oath has not yet been taken by the President of the Republic. Conversely, the oath of the three judges nominated by the new legislature without a valid legal basis has been taken by the President of the Republic.
46. The two judges elected by the new legislature replacing the two judges outgoing in December 2015, Ms Przyłębska and Mr Pszczółkowski, have in the meantime taken up their function of judge in the Constitutional Tribunal.

47. On 28 April 2016 the President of the Republic took the oath of Mr Jędrzejewski who had been nominated by the new legislature earlier that month to replace Mr Granat whose term as judge in the Constitutional Tribunal had ended.

II. Assessment

Appointment of judges of the Constitutional Tribunal

48. The Commission considers that the binding and final judgments of the Constitutional Tribunal of 3 and 9 December 2015 as far as the appointment of judges is concerned have still not been implemented. These judgments require that the State institutions of Poland cooperate loyally in order to ensure, in accordance with the rule of law, that the three judges that have been nominated by the previous legislature of the Sejm can take up their function of judge in the Constitutional Tribunal, and that the three judges nominated by the new legislature without a valid legal basis do not take up this function. The fact that these judgments have not been implemented raises serious concerns in regard of the rule of law, as compliance with final judgments is an essential requirement inherent in the rule of law.

49. In the exchange of letters the Polish Government referred to the existence of a constitutional custom in Poland regarding the nomination of judges which would justify the position taken by the new legislature of the Sejm. The Commission notes however, as did the Venice Commission24, [24 Opinion, para 112.] that it is for the Constitutional Tribunal to interpret and apply the national constitutional law and custom, and that the Constitutional Tribunal did not refer to such a custom in its judgments. The judgment of 3 December which has validated the legal basis for the nominations of the three judges by the previous Sejm for the posts which became vacant on 6 November cannot be overturned by invoking a supposed constitutional custom which the Tribunal did not recognize.

50. Also, limiting the impact of these judgments to a mere obligation for the Government to publish them, as put forward by the Polish authorities, would deny any legal and operational effect of the judgments of 3 and 9 December. In particular, it denies the obligation of the President of the Republic to take the oath of the judges in question, which has been confirmed by the Constitutional Tribunal.

51. Finally, the Commission notes that also the Venice Commission considers that a solution to the current conflict over the composition of the Constitutional Tribunal "must be based on the obligation to respect and fully implement the judgments of the Constitutional Tribunal" and "therefore calls on all State organs and notably the Sejm to fully respect and implement the judgments"25. [25 Opinion, para 136.]

Conclusion

52. In view of the above the Commission considers that the Polish authorities should respect and fully implement the judgments of the Constitutional Tribunal of 3 and 9 December 2015. These judgments require that the State institutions cooperate loyally in order to ensure, in accordance with the rule of law, that the three judges that have been nominated by the previous legislature can take up their function of judge in the Constitutional Tribunal, and that the three judges nominated by the new legislature without a valid legal basis do not take up the post of judge without being validly elected.

4) Amendment of 22 December 2015 to the Law on the Constitutional Tribunal

I. The Facts

53. On 22 December 2015, following an accelerated procedure, the Sejm amended the Law on the Constitutional Tribunal26. [26 Law of 25 June 2015 on the Constitutional Tribunal, published in Official Journal on 30 July 2015, item 1064, as amended. The Law of 22 December 2015 was published in the Official Journal on 28 December; item 2217.] The amendments inter alia increased the attendance quorum of judges for hearing cases27, [27 See Article 1(9) new, replacing Article 44(1-3).] raised the majorities needed in the Constitutional Tribunal to hand down judgments in full configuration28, [28 See Article 1(14) new, replacing Article 99(1).] required the handling of cases in chronological order29 [29 See Article 1(10) new, inserting a new Article 80(2).] and provided a minimum delay for hearings30. [30 See Article 1(12) new, replacing Article 87(2).] Certain amendments31 [31 See Article 1(5) new, inserting a new Article 28a and Article 1(7) new, inserting a new Article 31a.] increased the involvement of other institutions of the State in disciplinary proceedings concerning judges of the Tribunal. These amendments are set out in more detail below.

Attendance quorum

54. The amended Article 44(3) states that "Adjudicating in full bench shall require the participation of at least 13 judges of the Court". 32 [32 This new attendance quorum also applies for resolutions of the General Assembly, unless otherwise provided in the Law, see Article 1(3) new, amending Article 10(1).] According to the amended Article 44(1) under 1) the Constitutional Tribunal shall rule sitting in its full configuration, unless otherwise specified by law. This applies in particular to what are described as "abstract cases" of constitutional review of newly adopted laws. The amended Article 44(1) under 2) and 3) provides for exceptions, notably for individual complaints or cases submitted by ordinary courts. The former version of the Law required, for a decision by the full bench, the presence of at least nine judges (Article 44 (3), item 3 of the Law before the amendment).

Voting majority

55. According to the amended Article 99(1), judgments of the Constitutional Tribunal sitting as a full bench (for "abstract cases") require a majority of two-thirds of the judges sitting. With a view to the new (higher) attendance quorum (see above) this means that a judgment must be approved by at least nine judges if the Constitutional Tribunal adjudicates as a full bench33. [33 According to the amendment, the same rules - attendance quorum and a two-third majority of votes - also apply to the General Assembly of the Court.] Only if the Tribunal adjudicates in a panel of seven or three judges (individual complaints and preliminary requests from ordinary courts), a simple majority of votes is required. The former version of the Law required, for a decision by the full bench, a simple majority of votes (Article 99(1) of the Law before the amendment).

Handling of cases in chronological order

56. According to amended Article 80(2)34, [34 See Article 1(10) new, inserting a new Article 80(2).] the dates for hearings or proceedings in camera, where applications in abstract constitutional review proceedings are considered, "shall be established by order in which the cases are submitted to the Court". There are no exceptions foreseen to this rule and according to the amendment this rule applies to all pending cases for which no date for a hearing has been set yet35. [35 See Article 2 new.] The former version of the Law did not include such rule.

Minimum delay for hearings

57. According to amended Article 87(2)36, [36 See Article 1(12) new.] ”[t]he hearing may not take place earlier than after three months from the day the notification on the date of the hearing has been delivered to the participants of the proceedings, and for cases adjudicated in full bench – after six months”. The former version of the Law stated that the hearing cannot be held earlier than after 14 days from the delivery date of the notification of its date to participants of the proceedings.

Disciplinary proceedings

58. According to amended Article 28a37, [37 See Article 1(5) new.] “[d]isciplinary proceedings may also be instituted further to an application from the President of the Republic of Poland or the Minister for Justice no later than three weeks after the date of receipt of the application, unless the President of the Court decides that the application is unfounded.” Furthermore, according to the new Article 31a(1) of the Law38 [38 See Article 1(7) new.] “[i]n particularly gross cases, the General Assembly shall apply to the Sejm to depose the judge of the Court.” This action of the General Assembly could be initiated by an application by the President of the Republic or the Minister of Justice pursuant to Article 31a(2) new, although the Constitutional Tribunal remains free to decide. The final decision will be taken by the Sejm. According to the former version of the Law the Executive branch was not entitled to institute disciplinary proceedings and the Sejm was not granted the power to depose a judge of the Court. The Constitutional Tribunal itself had the power to depose of a judge of the Tribunal.

Judgment of 9 March 2016 of the Constitutional Tribunal

59. In its judgment of 9 March 2016, the Constitutional Tribunal declared unconstitutional the Law of 22 December 2015 in its entirety as well as specific provisions thereof, in particular those referred to above. So far the Polish authorities have failed to publish the judgment in the Official Journal. The Polish Government contests the legality of the judgment, as the Constitutional Tribunal did not apply the procedure foreseen by the Law of 22 December 2015. The same position is taken by the Government towards the judgments rendered by the Tribunal after 9 March 2016.

II. Assessment

60. As set out in more detail below, the Commission takes the view that the effect of the amendments concerning the attendance quorum, the voting majority, the handling of cases in chronological order and the minimum delay for hearings, in particular their combined effect, undermine the effectiveness of the Constitutional Tribunal as a guarantor of the Constitution.

Attendance quorum

61. The Commission considers that the attendance quorum of 13 out of 15 Judges for the full configuration of the Constitutional Tribunal (which deals with the "abstract" constitutional review of newly adopted laws) represents a serious constraint on the decision-making process of the Constitutional Tribunal, with the risk of blocking it. The Commission notes, as confirmed by the Venice Commission, that an attendance quorum of 13 out of 15 judges is unusually high compared to requirements in other Member States. It is indeed entirely imaginable that for various reasons, such an attendance quorum might on occasion not be reached, which would then leave the Tribunal at least temporarily unable to adjudicate. In fact, such a situation would be present in the current circumstances, as the Tribunal has only 12 judges at this stage.

62. The impact of this requirement on the functioning of the Constitutional Tribunal must be assessed within the context of other provisions, notably by taking into account its combination effect with other requirements as amended.

Voting majority

63. In addition to the increased attendance quorum, a two-third majority for adopting decisions (for "abstract" constitutional review of newly adopted laws) significantly aggravates the constraints on the decision-making process of the Constitutional Tribunal. The Commission notes, as also confirmed by the Venice Commission, that in the vast majority of European legal systems, only a simple voting majority is required. In any event, the Constitutional Tribunal found that the Polish Constitution prescribed voting by simple majority, and that the requirement of a qualified majority was thus unconstitutional.

Handling of cases in chronological order

64. The "sequence rule” according to which the Constitutional Tribunal must hear cases in the sequence in which they have been registered negatively affects the capacity to render rapidly decisions on the constitutionality of new laws, in particular in view of the current number of pending cases. The impossibility to take into account the nature of a case (in particular when involving fundamental rights issues), its importance and the context in which it is presented, can prevent the Constitutional Tribunal from meeting the requirements for a reasonable length of proceedings as enshrined in Article 6 of the European Convention on Human Rights and Article 47 of the EU Charter of Fundamental Rights. As also noted by the Venice Commission, the sequencing rule may also discourage the putting of preliminary ruling questions to the Court of Justice, particularly if a hearing is required after the preliminary ruling has been received.

Minimum delay for hearings

65. Finally, this issue is to be seen in combination with the requirement concerning the scheduling of cases, in particular the minimum delay for hearings (participants of the proceedings must be notified of a hearing before the Constitutional Tribunal at least three - and in important cases six - months before the date of the hearing) risks slowing down proceedings unnecessarily. As set out above, the absence of a general provision that would allow the Constitutional Tribunal to reduce these deadlines in urgent cases is incompatible with the requirements for a reasonable length of proceedings under Article 6 of the European Convention on Human Rights and Article 47 of the EU Charter of Fundamental Rights.

Overall findings on procedural issues

66. As an overall conclusion the Commission considers that the combined impact of these provisions on the effectiveness of the constitutional review is a matter of concern in regard of the rule of law, as it prevents the Constitutional Tribunal from fully ensuring an effective constitutional review and fulfilling its function as a safeguard mechanism established at national level to secure the rule of law. This conclusion is shared by the Venice Commission.

Disciplinary proceedings

67. The Commission also notes with concern the fact that certain amendments increase the involvement of other institutions of the State in disciplinary proceedings concerning judges of the Tribunal. In particular, the President of the Republic or the Minister of Justice have been given the power to initiate disciplinary proceedings against a Constitutional Tribunal judge39 [39 See Article 1(5) new, inserting a new Article 28a.] and, in particularly serious cases, it is for the Sejm to take the final decision on the dismissal of a judge following a request to that effect by the Constitutional Tribunal40 . [40 See Article 1(7) new, inserting a new Article 31a.]

68. The Commission considers that the fact that a political body decides on (and hence may refuse to impose) a disciplinary sanction as proposed by the Constitutional Tribunal may pose a problem regarding independence of the judiciary, as the Parliament (as a political body) is likely to also decide on the basis of political considerations. Similarly it is not clear why political institutions such as the President of the Republic and the Minister of Justice should have the power to initiate disciplinary proceedings. Even if such proceedings require approval by the Tribunal or its President, already the fact that they may be initiated by political institutions may have an impact on the independence of the Tribunal. This raises concerns as regards the separation of powers and the independence of the Constitutional Tribunal as the proposal of the Tribunal to dismiss a judge could be rejected by the Sejm.

Lack of implementation of the judgment of 9 March 2016

69. The Constitutional Tribunal ruled in its judgment of 9 March that the amendments of the Law of 22 December 2015 referred to in this section are unconstitutional.

70. The Commission notes that the Polish Government contests the legality of the judgment, as the Constitutional Tribunal did not apply the procedure foreseen by the Law of 22 December 2015. For this reason the Polish authorities have not published the judgment in the Official Journal.

71. The Commission considers that the Constitutional Tribunal was correct not to apply the procedure foreseen by the Law of 22 December 2015. In that respect the Commission agrees with the Venice Commission, which states on this point that "a simple legislative act, which threatens to disable constitutional control, must itself be evaluated for constitutionality before it can be applied by the Court. […] The very idea of the supremacy of the Constitution implies that such a law, which allegedly endangers constitutional justice, must be controlled – and if need be, annulled – by the Constitutional Tribunal before it enters into force".41 [41 Opinion, para 41.] The Commission furthermore underlines that as the Constitutional Tribunal is currently composed of 12 judges only, it could otherwise not have reviewed the constitutionality of the amendments of 22 December 2015 as requested by the First President of the Supreme Court, the Ombudsman and the National Council of the Judiciary. This would have been contrary to the Polish Constitution which has tasked the Constitutional Tribunal with the role of ensuring constitutional review. Similarly, the Tribunal could not have decided on the constitutionality of the qualified majority requirement while voting in accordance with the very requirement the constitutionality of which it was examining.

72. The refusal of the Government to publish the judgment of the Constitutional Tribunal of 9 March raises serious concerns in regard of the rule of law, as compliance with final judgments is an essential requirement inherent in the rule of law. In particular, where the publication of a judgment is a prerequisite for its taking effect and where such publication is incumbent on a State authority other than the court which has rendered the judgment, an ex post control by that State authority regarding the legality of the judgment is incompatible with the rule of law. The refusal to publish the judgment denies the legal and operational effect of a binding and final judgment, and breaches the principles of legality and separation of powers.

73. The refusal to publish the judgment of 9 March creates a level of uncertainty and controversy which will adversely affect not only the present judgment, but all future judgments of the Tribunal. Since these judgments will, following the judgment of 9 March, be rendered in accordance with the rules applicable before 22 December 2015, the risk of a continuous controversy about every future judgment will undermine the proper functioning of constitutional justice in Poland. This risk has already materialized as the Tribunal has to date rendered nine rulings since its ruling of 9 March 2016, and none of these rulings have been published in the Official Journal.

Conclusion

74. In view of the above, the Commission takes the view that the effect of the amendments, in particular their combined effect, undermines the effectiveness of the Constitutional Tribunal as a guarantor of the Constitution. The Commission also notes with concern the fact that certain amendments increase the involvement of other institutions of the State in disciplinary proceedings concerning judges of the Tribunal, raising concerns as regards the separation of powers and the independence and integrity of the Constitutional Tribunal.

75. The Commission notes that the amendments have been declared unconstitutional by the Constitutional Tribunal in its judgment of 9 March 2016. However, the fact that the Polish Government has so far refused to publish the judgment of the Constitutional Tribunal in the Official Journal, creates uncertainty about the legal effect of the judgment and hence on the legal basis on which the Tribunal must act. This uncertainty undermines the effectiveness of constitutional review and raises serious concerns in regard of the rule of law.

76. This legal uncertainty has already manifested itself in the fact that the further judgments rendered by the Constitutional Tribunal have not been published, and are not recognised by the Government. This situation of non-recognition of judgments of the Constitutional Tribunal is liable to create profound legal uncertainty in the Polish legal system across a wide range of areas.

77. Refusing to publish and to act upon the judgment of the Constitutional Tribunal of 9 March 2016, as well as all the judgments of the Tribunal rendered subsequently, falls short of the required respect for the Tribunal as the guarantor of the Constitution, and is not compatible with the rule of law.

5) Effectiveness of Constitutional review of new legislation - Media law and other laws

I. The Facts

78. A number of particularly sensitive new legislative acts have been adopted by the Sejm, often through accelerated legislative procedures, such as, in particular, a media law42, [42 Law of 30 December 2015 amending the Broadcasting Law, published in Official Journal on 7 January 2016, item 25.] a new Civil Service Act43, [43 Law of 30 December 2015 amending the Law on Civil Service and certain other acts, published in Official Journal on 8 January 2016, item 34.] a law amending the law on the Police and certain other laws44 [44 Law of 15 January 2016 amending the Law on Police and other laws, published in Official Journal on 4 February 2016, item 147.] and laws on the Public Prosecution Service45, [45 Law of 28 January 2016 on the Prosecutor's Office, published in Official Journal on 15 February 2016, item 177; Law of 28 January 2016 - Regulations implementing the Act - Law on the Prosecutor's Office, published in Official Journal on 15 February 2016, item 178.] and a new law on the Ombudsman and amending certain other laws46. [46 Law of 18 March 2016 on the Ombudsman and amending certain other laws. The law was signed by the President of the Republic on 4 May 2016.] The Commission has asked the Polish Government about the state of play and content of these legislative reforms in its letters of 1 February 2016 and 3 March 2016, but so far this information has not been provided. Furthermore, a number of other sensitive draft legislative acts have been submitted to the Sejm, such as drafts for a new media law47 [47 Draft legislation submitted to the Sejm on 25 April 2016.] and a new anti-terrorism law48. [48 Draft legislation submitted to the Sejm on 11 May 2016. The Commission is furthermore aware that a new law amending the Law on the National Judicial Council and certain other laws has been submitted on 5 May 2016 by the Minister of Justice to the National Legislative Centre.]

II. Assessment

79. The Commission considers that as long as the Constitutional Tribunal is prevented from fully ensuring an effective constitutional review, there will be no effective scrutiny of compliance with the Constitution, including fundamental rights, of legislative acts such as those referred to above. The Commission notes for example that new legislation (such as the media law49) [49 Law of 30 December 2015 amending the Broadcasting Law, published in Official Journal on 7 January 2016, item 25.] raises concerns relating to freedom and pluralism of the media. More specifically, the new media law modifies the rules for the appointment of the Management and Supervisory Boards of the public service broadcasters, putting them under the control of the Treasury Minister, rather than an independent body. The new law also provides for the immediate dismissal of the existing Supervisory and Management Boards. In that respect the Commission questions in particular the possibilities of judicial redress for the persons affected by the law.

81. Legislation such as the new Civil Service Act50 [50 Law of 30 December 2015 amending the Law on Civil Service and certain other acts, published in Official Journal on 8 January 2016, item 34.] is equally important from the perspective of the rule of law and fundamental rights. In that respect the Commission has asked to Polish Government about the possibilities of judicial redress for the persons affected by the law in its letters of 1 February and 3 March 201651. [51 Letter of 1 February 2016 from First Vice President Timmermans to Minister of Justice Mr Ziobro; Letter of 3 March 2016 from First Vice President Timmermans to Minister of Foreign Affairs Mr Waszczykowski.] The Polish Government has so far not replied to the Commission on this point.

82. Also the Law on the Public Prosecution Service52 [52 Law of 28 January 2016 on the Prosecutor’s Office, published in Official Journal on 15 February 2016, item 177; Law of 28 January 2016 – Regulations implementing the Act – Law on the Prosecutor’s Office, published in Official Journal on 15 February 2016, item 178.] is important from the perspective of the rule of law and fundamental rights, and requires a fully effective constitutional review, including in individual cases.

83. The law amending the law on the Police and certain other laws53 [53 Law of 15 January 2016 amending the Law on Police and other laws, published in Official Journal on 4 February 2016, item 147.] may also raise questions relating to its compliance with fundamental rights, including privacy and data protection. On 28-29 April 2016, a delegation of the Venice Commission visited Warsaw to discuss the amendments to the Law on the Police and certain other laws, with a view to delivering an opinion on 10-11 June 2016.

Conclusion

84. The Commission considers that as long as the Constitutional Tribunal is prevented from fully ensuring an effective constitutional review, there will be no effective scrutiny of compliance with fundamental rights of legislative acts. This raises serious concerns in regard of the rule of law, notably as a number of particularly sensitive new legislative acts have been adopted recently by the Sejm for which constitutional review should be available.

6) Conclusion

85. For the reasons set out above the Commission is of the opinion that there is a situation of a systemic threat to the rule of law in Poland. The fact that the Constitutional Tribunal is prevented from fully ensuring an effective constitutional review adversely affects its integrity, stability and proper functioning, which is one of the essential safeguards of the rule of law established in Poland. Where a constitutional justice system has been established, its effectiveness is a key component of the rule of law.

86. Respect for the rule of law is not only a prerequisite for the protection of all fundamental values listed in Article 2 of the Treaty on European Union. It is also a prerequisite for upholding all rights and obligations deriving from the Treaties and from international law, and for establishing mutual trust of all EU citizens and national authorities in the legal systems of all other Member States.

87. The Commission is of the opinion that this threat to the rule of law must be addressed as a matter of urgency. The Polish authorities should respect and fully implement the judgments of the Constitutional Tribunal of 3 and 9 December 2015 concerning the appointment of judges. This means in particular that the President should take the oath of the three judges that have been nominated by the previous legislature.

88. Moreover, it is necessary that the Polish authorities respect and publish the judgment of the Constitutional Tribunal of 9 March 2016 concerning the rules on the functioning of the Constitutional Tribunal. They should also publish and comply with all judgments that have been rendered by the Constitutional Tribunal since 9 March or will be rendered in the future.

89. More generally, the Commission underlines that the loyal cooperation which is required amongst the different state institutions in rule of law related matters is essential in order to find a solution in the present situation. This includes that all Polish authorities refrain from actions and public statements which could undermine the legitimacy and efficiency of the Constitutional Tribunal.

90. The Commission invites the Polish Government to submit its observations on the foregoing within two weeks of receipt of this opinion. On the basis of these observations, the Commission stands ready to pursue the constructive dialogue with the Polish government with a view to finding solutions to the concerns set out in this opinion. If the concerns have not been satisfactorily resolved within a reasonable time, the Commission may issue a recommendation.

Done at Brussels, 1.6.2016
For the Commission

Frans TIMMERMANS Member of the Commission

Thursday, 28 July 2016

Brexit Begins: an overview of the legal issues




Alan S. Reid, Senior Lecturer in Law, Sheffield Hallam University. The author welcomes comments on the blog at a.s.reid@shu.ac.uk

The tumultuous result of the recent EU referendum has seismic implications for the United Kingdom, its constituent parts and of course the European Union itself.

The nature of the future relationship between the UK and the EU, the question of Scottish independence and membership of the EU, increasing calls for unifying Ireland, the risk of Eurosceptic contagion affecting the rest of the EU and the nature, scope and focus of the new 27 member bloc EU are all huge existential questions, the implications of which will reverberate for years to come. 

The more immediate legal question to address, and one that has been largely side-lined by the bigger picture problems, is that of the actual process of extricating the UK from the EU legal system.

The process for withdrawal is not without uncertainty. The new process for withdrawal is set out in article 50 of the Treaty on European Union and has only been in force since 2009, when the Treaty of Lisbon came into force. Thus, the process is nascent, without legal precedent and ambiguous.

At this juncture, it is important to set out the historical development of the withdrawal clause.

In the negotiations to create a Constitution for Europe, it was clear that the drafters of the constitution wanted a clear voluntary withdrawal clause, as set out in Article I-60. This was in stark contrast to the previous European Community orthodoxy, namely that withdrawal was politically, legally and practically impossible and as such, the previous treaties did not include a withdrawal clause. Indeed, the main impetus for refusing to acknowledge the possibility of withdrawal, was to effectively ignore any criticism of the drive towards 'an ever closer union' of the Peoples of Europe: see Athanassiou, Edward and Douglas-Scott. The thinking was that to even contemplate the unilateral secession of a member State was to risk this existential danger coming to fruition: the irony is that such thinking may now be forthright in the minds of prominent Bremainers.
 
Intervening realpolitik crises, such as the Irish rejection of the Treaty of Nice, led to increasing recognition, albeit reluctantly, by the European Community of the growing discontent across European member states with European Union integration. Such acceptance of the emerging reality necessitated the insertion of an exit clause into the proposed Constitution. After the rejection of the Constitution, the withdrawal clause, and indeed most of the major terms of the Constitution itself, were retained in the draft text of the Treaty of European Union proposed at the Inter-Governmental Conference, convened in Lisbon, in 2007.

With the coming into force of the Lisbon Treaty in 2009, the withdrawal clause of Article 50 TEU is now the de facto and de jure process for any member State wishing to exit the new European Union supranational organisation.

However, this has not prevented many hard-line Brexiters claiming that Article 50 is not the only mechanism for extrication. The Vote Leave Roadmap considers that there are three main options for withdrawal. The first method suggested is use of the Article 48 TEU process for changing the treaties of the EU. The second suggestion is the Article 50 TEU process and the final suggestion was to rely on general public international law, specifically article 54 of the Vienna Convention of the Law of Treaties 1969. A fourth possibility also tentatively mooted, is for the UK to simply repeal the European Communities Act 1972 and replace it with new UK law.

The Options - Article 48 TEU

In terms of recourse to the article 48 TEU process, this looks highly improbable (see Armstrong’s analysis). This process is relied upon by Vote Leave as an historical precedent, in relation to Greenland's extrication from the European Economic Community. There are a number of objections to the appropriateness of this mechanism. First, the situation of Greenland in the early 1980s is not analogous to the current situation. Greenland was not a member State of the EEC, it was a constituent country within the Danish Realm, that is it was a semi-autonomous part of the Kingdom of Denmark. After increased self-rule under after the 1979 referendum gave Greenland more autonomy akin to home rule, the Greenland government sought to remove itself from the EEC. Denmark, as the member State of the EEC and desiring to give effect to Greenland's democratic wishes, commenced the process of seeking change to the EEC Treaty in 1982. After a few years of negotiations, EEC law ceased to apply to Greenland by virtue of EEC law: an amendment to the Treaties Thus, the withdrawal of Greenland from the EEC and its laws did not relate to a member State, it only related to the geographical scope of EEC law and the question of access to the EEC single market for Greenland's fish and fish products. Further, after the decision was taken, because Greenland still retained strong legal, political and economic connections with the EEC member State Denmark, Greenland was able to forge itself an EEC identity itself: that of an Associated Overseas Country or Territory.

It will be difficult to argue that the option of gaining Associated Territory is available for either the United Kingdom, since it is a sovereign country that has decided to leave the European Union, or for Scotland, Northern Ireland, London and Gibraltar, as areas of the UK (or as a British Overseas Territory) desirous to remain. Nevertheless, some have suggested that Scotland should consider the option of gaining associated status for the devolved regions of the UK that voted to stay in the EU: the reverse Greenland option. In this latter scenario, the rest of the UK would leave the EU, and the devolved regions of the UK which voted to stay would retain favourable access to the EU internal market as Associated Territories. Such a position would be without precedent, since all Associated Overseas Countries and Territories under EU law retain significant links to a member State of the EU and are all geographically distant from the EU. Nevertheless, the mere fact that this option is being discussed highlights the unique constitutional challenges facing the UK and the EU post-Brexit.   

Brexit relates to a member State of the EU voluntarily leaving: something which has no legal or political precedent. From a political perspective, the article 48 TEU process is unappealing to the Brexiters. The process requires the unanimous consent of the governments of the member States and for that decision to be ratified by those member States according to their constitutional arrangements. Thus, there is a danger of the use of a veto by any one of the 27 member States to stymie the process at the EU level and thereafter a risk of a domestic constitutional ratification process of any of the 27 member States delaying or frustrating the process of UK withdrawal. Thus, an ordered, seamless and swift transition of the UK from EU member State to non-EU member State would not be the product of Article 48 TEU. Further, article 48 TEU is now not the only process for dealing with the geographical scope and reach of EU law. Indeed, there is a more specific and more appropriate process under EU law: the Article 50 withdrawal system.  

The Article 50 TEU process is more appropriate for a number of reasons. It is the lex specialis for withdrawal of a member State from the EU, whilst Article 48 TEU is the lex generalis for significant changes to any aspect of EU law, including withdrawal of an EU member State. On that legal ground alone, Article 50 should be the most appropriate mechanism. Further, this process only requires a qualified majority decision by the 27 member States, not unanimity and does not require to be ratified by the member States according to their constitutional requirements. Thus, the withdrawal process should be simpler and more streamlined than that of Article 48 TEU. The implications of this process will be set out in a later section.

The Options - Article 54 of the Vienna Convention

It has also been argued that article 54 of the Vienna Convention on the Law of Treaties 1969 applies to the process of UK withdrawal from the EU. Article 54 of the Vienna Convention simply provides that the withdrawal of a party from an international treaty can take place according to two conditions, namely either in conformity with the terms of the Treaty or at any time by consent of all the parties after consulting the rest of the State parties.

Again, like the Greenland situation outlined above, the appropriateness of this mechanism has been severely diminished by the passage of time. The EU now has an explicit withdrawal mechanism (article 50 TEU) and a consultative mechanism for changing the EU Treaties (article 48 TEU). Thus, reliance on the general terms of public international law set out in the 1969 convention would appear incongruous in light of the existence of an explicit process for withdrawal. And indeed, recourse to the article 50 TEU procedure itself would be entirely consistent with the underlying principle behind article 54 of the Vienna Convention, that is withdrawal from a Treaty should take place in conformity with the Treaty and in consultation with the States Parties to the Treaty. Further, a reliance on general principles of international law would fly in the face of the of the well-established legal orthodoxy that confirms the autonomous sui generis nature of EU law.  The EU is a new legal order, and as such, amendments to its constitutional foundations must be undertaken according to EU law itself (Defrenne).  

The Options - Simple Repeal of the 1972 Act

The other extreme scenario envisaged would be to force through the UK parliament emergency legislation repealing and replacing the European Communities Act 1972.  Of course, the UK Parliament is supreme and can enact and repeal any law it so wishes, including those of a constitutional status such as the 1972 Act (see pars 207 of the HS2 judgment), but the legal and political implications of such a premature move would be profoundly destabilising. Without any rules and laws setting out the UK's trading relationship with the EU, premature express repeal of the 1972 Act would create a dangerous legal vacuum, which would also be hugely destabilising politically and economically, particularly as regards the ability of the UK to trade bother within and outwith the European Economic Area.

The last forty three years have seen the UK's laws increasingly adopt a pro-EU stance, using EU law terminology and cross-referencing EU law and EU institutions throughout, in order to give effect to EU law. Further, EU Regulations all have the directly applicable force of law in the UK as well. There are widely divergent views on how much UK law is directly (and indirectly) influenced by EU law, ranging from 15% to 50%, but regardless of the divergence of views on this point, it is an indisputable fact that EU law principles, rules and doctrines have become intertwined and intermeshed with that of the law of the United Kingdom, and its constituent parts of England, Wales, Northern Ireland and Scotland such that, to simply attempt to wind the clock back to 1972 would be highly reckless, difficult and an act of extreme folly. Such action would seriously undermine the reputation of the UK as a modern, outward looking nation state which implements, follows and gives effect to its international law obligations in a spirit of mutual cooperation and respect.

To refuse to use the Article 50 TEU process and to unilaterally refuse to comply with EU law from the date of the express repeal of the 1972 Act, would cause major ramifications at the EU law and international law level. Domestically, since Parliament is sovereign, there is nothing legally to stop the UK Parliament simply repealing the 1972 Act. However, At the EU law and international law levels, diplomatic, political and legal cooperation between the UK, the rest of the EU and indeed international organisations would become fractious, if not impossible, although legal action undertaken by the European Commission or other European Union institutions would be rendered otiose by the UK's lack of engagement with the organisation itself.

The EU could suspend the UK's rights under EU law under Article 7 TEU, but of course if the UK had already unilaterally removed itself from the EU by way of the repeal of the 1972 Act, then a declaration that the UK has been in violation of EU law and thereafter had its rights under EU law suspended by the EU, would be of declaratory value only, from the point of view of domestic law. Similarly, any action by the Commission or any other EU institution at the European Court of Justice would be nugatory, from the view of UK law, given the non-applicability of EU law within the UK legal system, post-Brexit. However, at the EU level, non-compliance would have serious legal implications, including state liability and at the international level, would have important political and diplomatic ramifications.

At the UK level, express repeal of the 1972 Act could only be done through the full legislative procedure of the UK Parliament. This would require Parliamentary consent. Therein lies the rub. The majority of parliamentarians in the present UK Parliament are still in favour of UK membership of the EU, notwithstanding the non-binding result of the recent plebiscite, although the parliamentarians are quick to state their political commitment to respect the wishes of the electorate. However, any attempt to repeal the 1972 Act without invoking Article 50 TEU or without an arrangement in place settling the relationship between the UK and the rest of the EU, would threaten the political commitment to respect the referendum outcome.  

The domestic impediments coalesce around the process for replacing the 1972 Act with an act that clarifies the relationship between the UK and the rest of the EU and the domestic law that is potentially in play.

The European Union Act 2011 was enacted by the UK Coalition Government and was designed, in part, to 'make provision about Treaties relating to the European Union.' Primarily, the Act was enacted in order to prevent Euro-creep, that is the perceived increasing land-grab by the European Union, into more and more areas of member State competence. Inadvertently, and according to the law of unintended consequences, this Act may introduce significant complexity into the post-Brexit world.

Section 2 of the European Union Act 2011 provides that any Treaty that amends or replaces the Treaty on European Union or the Treaty on the Functioning of the European Union, can only be ratified if a number of conditions are met. Those requirements are that Parliament must receive a statement on the Treaty amendments, Parliament must approve the Treaty by way of an Act if Parliament and there is a determination that either there needs to be a referendum on the proposed Treaty or that the Treaty changes are not such as to trigger the referendum requirement. These requirements were clearly designed to only operate in the event that new competences, new member States or significantly new institutional structures were to be introduced into the European Union framework and that the UK remained a member State of the EU. If any of these changes were proposed at the EU level, then a referendum would have to take place.

However, it is at least arguable that the terms of the 2011 Act could extend to the new EU treaties that will have to be produced in order to expunge all references to the United Kingdom and all legal effects thereto. The 2011 Act as it currently stands requires direct UK Parliamentary input into proposed changes in EU law. This specific UK law is also bolstered by the general terms of the Constitutional Reform and Governance Act 2010, which requires that international treaties can only be ratified by the UK after being put before the parliamentary approval process, as set out under section 18. 

The significance of the 2010 and 2011 acts also extends to the general argument that is gaining traction in the immediate aftermath of Brexit, that is the need for express Parliamentary approval of any changes to the UK-EU relationship. It is indeed true that foreign affairs, that is the power of the UK to ratify international treaties and indeed the power to enter into (and extricate itself from) international relations generally is widely undertaken to be an exercise of the royal prerogative. However, the royal prerogative is a diminishing executive power, subject to ever more control and supervision by the legislative wing of the state. The status quo pertaining to the exercise of the royal prerogative is under attack on two fronts: replacement of the amorphous executive power with a statutorily defined, controlled and exercised power and judicial and democratic supervision of the remaining executive powers of prerogative. The modern interpretation of the exercise of the royal prerogative is that Parliament must be involved in conducting oversight of use of this archaic power.

It has been argued that at the very least, Parliament must be in a position to acquiesce in the exercise of the royal prerogative by the Prime Minister (or other Minister): see for example, Human rights treaties in the English legal system, Bharat Malkani, Public Law 2011 (page 554). Indeed, Lord Oliver, in the International Tin Council case, stated that (at 499F-500C):

“as a matter of the constitutional law of the United Kingdom, the Royal Prerogative, whilst it embraces the making of treaties does not extend to altering the law or conferring rights upon individuals or depriving individuals of rights which they enjoy in domestic law without the intervention of Parliament...”

Clearly this judicial pronouncement refers to the traditional dualist view that international law obligations cannot become a part of the law of the UK unless and until these rights are incorporated into UK law by way of an Act of Parliament. However, the position of the UK post-Brexit reveals the reverse problem: how to 'unincorporate' those international rights guaranteed by EU law, to UK citizens within the UK and the rest of the EU and EU citizens living and working within the UK?

It is submitted that the reverse also holds true: altering the applicable EU law, 'de-conferring' individual EU law rights and depriving EU citizens in the UK of their domestic law rights under UK law must similarly be subject to the intervention of Parliament in order to be legitimate and fully in accordance with the rule of law. Thus, any change to the substantive terms of the 1972 Act, could only be done with the explicit approval of the UK Parliament and could only be done after the terms of UK exit have been agreed with the remainder of the EU.

The Article 50 TEU process 

Following the discussion above, if it is accepted that the Article 50 TEU process is indeed the most appropriate mechanism for extricating the UK from the EU, the question of how to do so under this system is no less complex legally than the other processes described above.

Article 50 TEU only extends to just over 250 words. It is rather brief and ambiguous. It states that:

'Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.'

It then further provides in 15 words that:

'A Member State which decides to withdraw shall notify the European Council of its intention.'

The first paragraph of Article 50 confirms that the running order of events mirrors the structure of Article 50 TEU itself: There must be an explicit, constitutionally sound decision of the UK to leave the UK before a notification to the European Council can have legal effect (see Mark Elliot’s analysis).

As stated earlier, an unequivocal, explicit intention to leave may well require democratic reflection and input in some form of Parliamentary acquiescence, as the repository of the sovereign will of the people. Further, as has been explicitly stated by numerous commentators, a referendum is not legally binding under the UK's constitutional arrangements. Thus, it is highly likely that such a decision to withdraw will not be forthcoming in the next days and weeks.   

This second paragraph of Article 50 is similarly significant because upon receipt of the notification to withdraw, the two year countdown to exit begins to run. It is clear since the weekend that neither David Cameron nor Vote Leave politicians are in no rush to trigger the two year countdown since there is a recognition that once the two year timeframe begins to reduce, the UK's negotiating position on securing a good economic deal between the UK and the rest of the EU becomes seriously weaker. The basis for such a view is that after the two year time limit expires, the UK will exit the EU, with or without a deal on its future relationship with the rest of EU: Article 50 only requires a deal on the terms of withdrawal. Indeed, Article 50 further states that the withdrawal agreement only need take into account the framework for its (the Member State's) future relationship with the Union. This wording implies that if there is no corresponding future relationship agreement already in place, the Member State concerned simply leaves the Union after the two year period, absent such an agreement.

The European Union has clearly been shaken to its core by the seismic Brexit decision. At its heart, the EU is torn between two competing push and pull factors: the desire to act decisively and in a spirt of unity and the requirement to ensure future relations with the UK remain as close as possible. Thus, political statements from the continent have vacillated from the cordial to the hostile, stemming from a desire to show the EU as a unified political bloc that will do everything it can to preserve its position and continued existence (and in so doing punish the UK in order to prevent the collapse of the EU through further defection) and a desire to maintain close diplomatic, political, legal and economic ties with a large European national state (which is significantly in the interest of the European Union).      

The European Court of Justice is the arbiter of EU law and has the final word on the interpretation and application of EU law (see Article 19 TEU).  As such, only the ECJ can definitively pronounce on the meaning and application of Article 50 TEU.

This can be done through various mechanisms applicable to the ECJ's jurisdiction. For example, if the European Council pressed ahead with a withdrawal arrangement concerning the UK, and the UK considered that a statement by the Prime Minister was not an express statement triggering the Article 50 TEU process, then the legality of these European Council measures could potentially be challenged under Article 263 TFEU.

On the opposite side of the spectrum, were the European Council or the Commission to fail to act in furtherance of the UK's intention to withdraw from the EU, perhaps on the basis that, for a considerable time, the EU institutions were only engaged in informal negotiations with the UK during the pre invocation stage of Article 50, then other Member States and EU institutions could theoretically submit an action for failure to act under Article 265 TFEU. Similarly, post invocation of Article 50, the Commission and the European Council will be in unchartered territory and will be engaged in detailed, complex negotiations with the UK and the other member States of the EU. It is not inconceivable that the negotiations may stall or reach an impasse, and that fact may well encourage other EU institutions or member States to invoke Article 265 TFEU. The basic fact of slow progress in reaching agreement could trigger such an action for failure to act, however a more cynical view would be that the Commission or Council may have been minded to procrastinate during negotiations, clear in the knowledge that the two year deadline is imminent and that the UK will have a weaker hand the closer the negotiations stretch out to the end of the two year deadline. 

There is also a possibility that because of the significant divergences in opinion on the legal situation pertaining to the UK's withdrawal, member States in dispute with one another concerning the terms of the UK's withdrawal from the EU, may agree to invoke the dispute mechanism system set out in Article 273 TFEU. However, this procedure is rarely used.

There is also the suggestion that the UK itself, by failing to trigger the Article 50 process in a timely fashion, could be in breach of its good faith obligations under Article 4(3) of the Treaty on European Union, which ultimately could lead to Article 258 proceedings in the ECJ.

More significantly, as the process of disentangling the UK from the EU progresses through the UK parliamentary process, legal issues on the validity, application and the interpretation of EU law may be raised in the domestic courts of the UK. In such circumstances, domestic proceedings may be suspended and the EU law questions referred to the ECJ for adjudication, as per the Article 267 TFEU preliminary ruling procedure. It is also not inconceivable that domestic law issues may arise in the other member States as a result of Brexit, for example Germany might be asked to contribute more to the EU budget.  In this situation, Brexit-related Article 267 TEFU references may be submitted to the ECJ from other Member States.

It is supremely ironic that the Leave campaigners' wish to extricate the UK from the European Union may in part depend on clarifications, pronouncements and adjudications emanating from their nemesis, the meddling European Court of Justice. 

As regards the domestic situation, there are already legal actions being submitted to the courts of the UK. It has been reported that an application has been made to the Queen's Bench Division of the High Court, concerning the legality of triggering Article 50 TEU without Parliamentary input.

Both of these reported legal developments rest on the use of the royal prerogative to trigger Article 50 TEU.  In essence, the argument turns on the triggering process of Article 50 TEU: does this need Parliamentary input or is it sufficient to have the Prime Minister exercise her royal prerogative?

Government lawyers argue that the operation of Article 50 is clearly within the parameters of the royal prerogative. Although factually and politically correct, it is not necessarily legally correct. The argument that the royal prerogative does not fully encompass withdrawal of the UK from the EU, rests on a number of issues surrounding Brexit.

The classic strands of debate on the royal prerogative are based on the works of AV Dicey and Blackstone (See United Kingdom: The Royal Prerogative, T. Poole, Int J Constitutional Law (2010) 8(1): 146-155.doi: 10.1093/icon/mop038 and Activism or Democracy? Judicial Review of Prerogative Powers and Executive Action, Banfield and Flynn, Parliam Aff (2015) 68 (1): 135-153. See further, R (On The Application of Bancoult) v Secretary of State For Foreign and Commonwealth Affairs, [2008] UKHL 61.) At its simplest, the conduct of foreign affairs, as an exercise in diplomacy and international politics, is highly dependent on policy, not law and as such is particularly suited to determination by royal prerogative, notwithstanding current controversies over its use (ie the Chilcot Inquiry).

As stated above, the direction of travel for the UK as a modern 21st Century democratic nation is for the royal prerogative to be steadily reduced over time, via the creation of new statutorily defined and controlled executive powers and for extant royal prerogative powers to be subject to increasing democratic and judicial control. It is this notion that goes to the heart of the legal actions currently being contemplated.

Despite the ambiguity over the exercise of the royal prerogative, it is clear that the royal prerogative cannot be used to change UK statutes (R (On The Application of Bancoult) v Secretary of State For Foreign and Commonwealth Affairs, [2008] UKHL 61, at para 44). Thus, the royal preogative cannot be used to change the European Communities Act 1972: only a new Act of Parliament can repeal and replace the 1972 Act. The controversy concerns how this is to be done.

The view of Government lawyers would, in all likelihood, be that the process would be as follows: the Prime Minister triggers Article 50 TEU and Whitehall begins the negotiations with the EU and its Member States. Both of these events are an exercise of the royal prerogative. After this process has ended, Parliament is involved: draft Acts of Parliament are created, setting out the mechanism for repeal of the 1972 Act, addressing the UK's relationship with the EU and creating powers for the UK to conduct trade with the rest of the world. This view assumes an orderly, timely and neat process and from that context, it is highly unrealistic. In particular, the two year time limit for Article 50 negotiations is extremely short and it is likely that the UK would desire to extend this timeframe, particularly in the event that there had been scant pre-Article 50 informal negotiations with the EU.

For the argument that the royal prerogative is not appropriate for triggering Article 50 TEU, there are a number of points that can be raised in support of this proposition.

First, the royal prerogative, in its classic exposition, is mainly concerned with the making of treaties. The unmaking of treaties is never really addressed in the textbooks and in the journal articles. This omission is important for a number of practical reasons.

First, the emphasis on making treaties is entirely warranted and it is easy from this perspective to see why and to understand how the prerogative works. When desiring to enter a treaty regime under international law, it would be unwieldy and cumbersome for the relevant Minister and civil servants to have to request Parliamentary approval every time they wished to engage in international negotiations. Once negotiations at the international plane have concluded, Parliament is involved through the passing of legislation taking the UK into the treaty regime. Indeed, this is exactly what happened in 1972: The UK negotiated the terms of its entry into the EEC and the Treaty of Accession was signed on the 22nd of January 1972; Parliament was given the opportunity to discuss the terms of the Treaty of Accession under the Ponsonby rule and also debated the terms of the European Communities Bill, which became the 1972 Act and the UK joined the EEC on the 1st of January 1973. It is established UK practice that the United Kingdom Parliament will enact domestic law giving effect to the terms of the international treaty in readiness of ratification of the treaty. 

During the course of the past month, three main ways to trigger Article 50 TEU have been mooted. The first method suggested is the classical method outlined above, namely the simple exercise of the royal prerogative, exercised by the Prime Minister. The second suggestion is that propounded by Nick Barber, Tom Hickman and Jeff King. They suggest that the significance of the decision to trigger Article 50 TEU, which will ultimately repeal the 1972 Act, requires an equal level of Parliamentary input and as such this can only be provided through an act of Parliament authorising the Prime Minister to trigger Article 50 TEU.

Adam Tucker has suggested that there is a third way, namely the making of an Order in Council under section 2(2) of the 1972 Act.

Each of these possibilities throws up immense constitutional challenges. The third option, use of the Order in Council mechanism under the 1972 Act, is controversial because the system envisaged under section 2(2) was designed to allow the UK to pass secondary legislation, in order to give effect to EU obligations and exercise EU Treaty rights. Although it is true that the use of Article 50 TEU would come under an expansive view of exercising EU law rights, it is more realistic to adopt a narrower view of section 2(2) of the 1972 Act such that it can only relate to positive EU law obligations, rights and duties and not the negative right to extricate the UK from the entire EU edifice.

Of course the use of Article 50 TEU relates to EU law, but it is the definitive step in releasing the UK from the EU and thus the terminology used in section 2(2) was highly unlikely to have been contemplated by the drafters of the Act in 1972 as encompassing acts taken to withdraw from the EU, especially since the right to withdraw from the EU has only existed for seven years. Nevertheless, it is an intriguing argument that, on one level, actually accords more fully with the EU's own view of the EU legal system, as a sui generis legal system. Thus, having to use the 1972 Act to withdraw from the EU, rather than resorting to general principles of UK constitutional law, appears more consonant with the view that the EU is a unique legal system, requiring special measures of withdrawal. It would also be neater in a sense, in that it would be internally consistent: the processes under the 1972 Act would be used to commence unravelling the 1972 Act.
   
The second option, that of requiring the Prime Minister to seek Parliamentary approval for triggering Article 50 is similarly attractive, but problematic. It is attractive to require an Act of Parliament to authorise use of Article 50 TEU because it ensures a high level of democratic control and scrutiny will be undertaken before the UK starts the process of withdrawing from the EU. This is fundamentally important because the referendum result was so divisive for the country and did not show an overwhelming desire to leave. Rather, just slightly over half of the population voting chose to leave the EU. The referendum result is not legally binding since there is no mention of the legal effects of the referendum in the authorising legislation of 2015. Further, it became acutely clear after the referendum, that the preparations for a Leave win, were virtually non-existent and that certain statements by the Leave campaign, and indeed Remain, were, at the very least, economical with the truth. The bigger question surrounds the post-EU environment for the United Kingdom and this question was never put to the electorate - what kind of relationship with the EU should the UK have?

It has been argued that there are seven different options available to the UK for a life outside the EU, all with vastly different outcomes. These options range from close cooperation with the EU as an associate member, membership of the EEA or EFTA, bilateral cooperation with the EU, a customs union with the EU, a free trade arrangement with the EU or simple WTO membership. Clearly, this complexity in post-EU relations was inadequately addressed during the referendum campaign and the answer to this question was not given when 52% of those voting answered 'leave the EU' in the referendum. Thus, there is no definitive UK-wide answer to this question, such that the Prime Minister cannot simply state that the express will of the people is clear.

In such circumstances, an expanded role for the UK parliament becomes very attractive: once the settled will of the people has been 'discovered' regarding the preferred post-Brexit choice, the Prime Minister can trigger Article 50 TEU and then deploy negotiators to spend the next two years securing a deal to achieve this settled will.

However desirable a new Act of Parliament authorising the Article 50 trigger would be, this approach fatally undermines the established process of the exercise of royal prerogative and confuses the beginning and the end of the withdrawal process. The Article 50 TEU process only commences the process for exiting the EU, and the UK Parliament will get its say when the Bill authorising the repeal of the 1972 Act is introduced to the House of Commons.  

Thus, it appears that the most likely outcome is for the royal prerogative to be used by the Prime Minister to trigger the Article 50 TEU process.  Nevertheless, this process is hardly satisfactory. The primary concern is that the two year limit is incredibly short and if there are seven options on the table for the status of the UK post-EU, most of this time may be taken up with attempting to secure the 'wrong' type of withdrawal agreement, if no clear exit strategy is in place.

An issue related to this is the status of the currently constituted rights of UK and EU citizens post-Brexit. This question also highlights the unprecedented nature of the task facing the UK. 

Unmaking a treaty has been only sporadically undertaken in the history of the UK. It has to be stressed that withdrawal or denunciation of a Treaty is often a last resort and is usually a result of other party non-compliance or because of a material change of circumstances. Indeed, the UK does not enter international treaties lightly and accedes to treaties in good faith, observing the international law principle of pacta sunt servanda. Generally, stable, democratic and internationally respected sovereign states only rarely denounce international treaties.

Withdrawing from or denouncing a 'traditional' treaty is a relatively simple process, utilising the royal prerogative. International treaties commonly provide that withdrawal or denunciation can be activated by simple notification of this intention by the member state to the depositary state or international organisation. The treaty would then not apply to the state concerned after a set period of time had elapsed, for example six months or a year. Some treaties may also impose certain conditions, such as the expiry of a certain period before withdrawal can be activated and treaties may provide for the legal effects of the treaty subsisting for a period beyond the withdrawal (see Article 58 ECHR). The nature of the international agreement is also a factor pointing to the ease of withdrawal. In the case of bilateral treaties, invariably they only encompass agreement on a narrow field of state action, such as trade, joint construction or projects (such as the Concorde) or financial cooperation. In the case of multilateral treaties, they predominantly tend to be restricted to dealing with a narrow range of legal fields. Again, removal from such a treaty only involves a narrow number of legal issues in the domestic plane and the issues would be more directed at the international law field.

In all of these instances, the process is solely in the hands of the departing state. Once triggered by royal prerogative, the domestic legal process is simply for an Act of Parliament to be passed (assuming of course that the international treaty had been given legal effect in the UK) extricating the UK from the treaty regime concerned. The Act of Parliament will provide for removal from the regime. Said removal from the treaty regime is normally straightforward, since the international rules applicable will primarily relate to the rules between nations and will relate to the financial costs of withdrawal, the loss of rights within the international organisation and the removal of jurisdiction to oversee compliance with the international regime. In these circumstances, exercise of the royal prerogative simpliciter is absolutely appropriate: the statement to withdraw is made under the royal prerogative, is transmitted to the depositary state/international organisation, that organisation/state informs the other parties of that fact and after the requisite time period has elapsed, the state is deemed to have left, whilst Parliament, after the exercise of the royal prerogative, gives royal assent to the domestic bill negating the legal effects (if any) within the domestic legal plane. These examples all share one common theme: the international organisation or depositary state plays an entirely passive role in the withdrawal process.
      
The extraction of the UK from the EU is of an altogether greater magnitude, requiring constitutional changes in the UK, institutional changes for the EU, changes to the running costs, operation and composition of the EU and the impact of directly effective EU law within the UK.  

This process for exiting the EU, by contrast to traditional international law processes, is driven by the EU itself, and must be conducted according to EU law, not general public international law. The suprantional sui generis nature of the EU requires that the EU be actively involved in the process for withdrawal of a Member State. Further, from a more practical standpoint, the close cooperation, integration and enforcement mechanisms that inhere under a supranational governance system, necessitates that the EU institutions must play a large part in the withdrawal process, for the decision to withdraw does not result in a simple binary result: the member State becomes a non-member State with no legal connections. Rather, the EU actively seeks a continuing relationship with the exiting Member State. Again, in a traditional multilateral treaty system, the fact that a Contracting State exits has minimal impact upon the international intergovernmental supervisory organisation system itself: the Contracting State, by leaving, loses voting and participation rights and the intergovernmental supervisory organisation simply carries on without the State concerned. Further, the decision to leave a multilateral treaty does result in a binary position: from the day after exit, the Contracting State has no legal connection to the treaty regime (except for the possibility for continuing liability for prior acts).

 Article 50 TEU requires a withdrawal arrangement to be agreed within two years. The sheer scale of the changes required will require massive cross cutting legislative changes within the UK, such that it is submitted, simple triggering of Article 50 TEU is inappropriate.

Thus, if the two alternative processes outlined above are ill-suited to UK removal, as a matter of UK law, then can it be that the unique characteristics of the Brexit case require modifications to the royal prerogative system itself? Could some sort of 'enhanced' royal prerogative/royal prerogative be required? Young has suggested that a new constitutional convention can crystallise, requiring that in areas of extreme high policy, it has to be shown that future planning and a clear exit strategy has been completed and agreed by the sovereign Parliament before the royal prerogative can be exercised. Further, it also appears reasonable that the royal prerogative, when being used to initiate a bilateral process of negotiation, should only be activated when the terms of reference are clearly delimited.

Regardless of the merits and demerits of the three options above, it is clear that the United Kingdom is in novel constitutional waters. Whatever process is ultimately adopted to begin the formal process of exit, for political and legal certainty, there needs to be a road map setting out the future direction of the UK's relationship towards its nearest neighbours on the continent of Europe. After the path to exit is made clear, the Article 50 process should progress. To fail to do this, risks an internecine war between the UK and EU which is no-one's long term interests.

Conclusion

The tumultuous events in the UK in the last month have plunged the UK and the EU into turmoil. In these times of immense uncertainty, only one thing is certain; the end of the UK's membership of the European Union is only just beginning.  

Photo credit: Metro.co.uk