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Brexit – Getting Out – How EU Law May Prohibit a “Stitch-Up” of the UK – UK Citizens May Have Rights Post Brexit – and Might be able to Sue for Illegal EU Brexit Acts – Even After Brexit

June 27, 2016

If anyone thinks the UK will be at the mercy of the 27 remaining EU Member States in negotiations over and in reaching a final agreement over the UK’s exit from the EU then they may have to rethink.  It is possible that long and well-established principles of European Union law may apply to any illegal actions.  And if the law were to be broken and the final agreement is unlawful then it is conceivable that EU citizens in the UK – which means individuals and companies – may be able to sue the EU after the UK’s exit for losses and damage suffered, even if they have then ceased to be EU citizens.

Individuals and companies have legally enforceable rights to detailed information about information held by the EU which might include at least some information about the negotiations as they take place.  And can negotiations by anonymous EU officials take place in private in what used to be called “smoke filled rooms” [a thing of the past under EU law] or must they be in public with all information published?  See also:

Brexit – Your Personal Right to Have Copies of the Brexit Negotiations Documents

It is conceivable that negotiations to reach a final agreement must seek to achieve the best outcome for the functioning of the Single European Market.  Hence, political claims could have some substance that it is possible an exit from the EU may not be one which excludes the UK from it nor one which imposes punitive trade tariffs and other obstacles to trade.

This blog post is not a detailed analysis of EU law.  It is solely intended to introduce you to some principles of EU law which might apply to control and restrict the conduct of the exit negotiations and the legality of any final agreement.  The intention is to equip you with some basic principles for further consideration of whether they might be applied to benefit the UK and its currently resident EU citizens in the lead up to and after an exit.  How and the extent to which such principles might control and restrict the conduct of the remaining 27 Member States, the EU Commission and Council will no doubt be subject to consideration by others in the coming months and years of the exit process and beyond.

The European Commission produced a useful document summarising some of the relevant over-riding legal provisions restricting what is lawful action by the EU and its institutions in the field of EU Administrative Law: 

The General Principles of EU Administrative Procedural Law In-depth Analysis Directorate General for Internal Policies Policy Department C: Citizens’ Rights and Constitutional Affairs Legal Affairs

Here are some examples to give you an idea of some provisions of immediate interest:

public authorities shall act and perform their duties within a reasonable time

“Law: Article 5(4) TEU ‘Under the principle of proportionality, the content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties […]’.”

“neither the EU nor Member States can render virtually impossible or excessively difficult the exercise of rights conferred by EU law,”

And must the negotiations be conducted in public?  How are the principles of transparency and of participatory democracy to be respected:

Article 10(3) TEU: ‘Every citizen shall have the right to participate in the democratic life of the Union. Decisions shall be taken as openly and as closely as possible to the citizen.’ Articles 11(1) and (3) TEU require Union institutions to hear views and opinions on EU measures and especially enter into consultation procedures.

These rights and obligations are applicable to situations where the proceedings lead to the adoption of an act of general application including decisions with general applicability.  They require that in order to ensure that such hearing can effectively take place, active information of the public and structured means of feedback and response should be created.

That might be taken together with the right of access to documents.  This is a fundamental right of EU law and also a basic condition of an open, efficient and independent European administration. Any limitation of this principle must be narrowly construed to comply with the criteria of Article 52(1) of the Charter of Fundamental Rights of the European Union and must therefore be based on law, must respect the essence of the right and follow the criteria of proportionality.  See Regulation No 1049/2001.

Under Article 15 (3) TFEU:

Article 15(3) TFEU: ‘Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, shall have a right of access to documents of the Union’s institutions, bodies, offices and agencies, whatever their medium, subject to the principles and the conditions to be defined in accordance with this paragraph…. Each institution, body, office or agency shall ensure that its proceedings are transparent and shall elaborate in its own Rules of Procedure specific provisions regarding access to its documents, in accordance with the regulations referred to in the second subparagraph….’; Charter, Article 42: ‘Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, has a right of access to documents of the institutions, bodies, offices and agencies of the Union, whatever their medium.’

And under Article 42 of the Charter

Article 42 Charter: ‘Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, has a right of access to documents of the institutions, bodies, offices and agencies of the Union, whatever their medium.’

Summary of Principles of EU Administrative Law

The principle of the rule of law:

Article 2 TEU

Applies to administrative actions.

Any action of the Union has to be based on the treaties according to the principle of conferral [Case 46/87 Hoechst v Commission [1989] ECR 2859, summary point 3].

The rule of law requires that EU institutions, bodies, offices and agencies shall act in accordance with the law

[The hierarchy of legal norms must be recognized and respected in that no act may violate higher-level Union law (Case 1/54 France v High Authority [1954] ECR 7, 23; Case 38/70 Deutsche Tradax GmbH v Einfuhr- und Vorratsstelle für Getreide und Futtermittel [1971] ECR 145, para. 10.);]

They must apply the rules and procedures laid down in the legislation.

The principle of legality

Actions of European administration occur under and within the law.

Article 52(1) sentence 1 of the Charter of Fundamental Rights:

‘Any limitation on the exercise of the rights and freedoms recognized by this Charter must be provided for by law and respect the essence of those rights and freedoms’.

Second, it is important to point out that provisions on conferring powers of public authority on border guards – such as the powers conferred in the contested decision, which include stopping persons apprehended, seizing vessels and conducting persons apprehended to a specific location – mean that the fundamental rights of the persons concerned may be interfered with to such an extent that the involvement of the European Union legislature is required’.

Case C-355/10, European Parliament v Council [2012], ECR I- published in the electronic Reports of Cases para 77:

The principle of legal certainty:

This principle requires EU legal rules to be clear and precise aiming to ensure that situations and legal relationships governed by EU law remain foreseeable.

Cases: Case C-199/03 Ireland v Commission [2005] ECR I-8027, para. 69. See also Case C-29/08 SKF [2009] ECR I- 10413, para. 77.22.  And also see : Cases: C-55/91 Italy v Commission [1993] ECR I-4813, para. 66; Joined Cases T-55/93 and T-232/94, T-233/94 and T-234/94 Industrias Pesqueras Campos v Commission [1996] ECR II-247, paras. 76, 116, 119; Case 43/75 Defrenne v SABENA [1976] ECR 455, paras. 69 ff.; Case C-143/93 Gebroeders van Es Douane Agenten vs Inspecteur der Invoerrechten en Accijnzen [1996] ECR I-431, para. 27; Joined Cases 205/82 to 215/82 Deutsche Milchkontor and Others v Germany [1983] ECR 2633.

Individuals must be able to ascertain unequivocally what their rights and obligations are and be able to take steps accordingly;

Cases: e.g. Case C-158/06 ROM-projecten [2007] ECR I-5103, para. 25 with further references.

Retroactive measures shall not be taken except in legally justified circumstances.

Cases: See Case T-357/02 Freistaat Sachsen v Commission [2007] ECR II-1261, para. 98, where the Court stated that ‘provisions of Community law have no retroactive effect unless, exceptionally, it clearly follows from their terms or general scheme that such was the intention of the legislature, that the purpose to be achieved so demands and that the legitimate expectations of those concerned are duly respected’.

Further, public authorities shall act and perform their duties within a reasonable time.

Joined Cases C-74/00 P and C-75/00 P Falck and Acciaierie di Bolzano v Commission [2002] ECR I-7869, para. 140.

The principle of protection of legitimate expectations

This has been recognised since the very early case law of the CJEU as sub-principle of the rule of law:

Cases: See Case 111/63 Lemmerz-Werke v High Authority of the ECSC [1965] ECR 677, where the concept of protection of legitimate expectations was first explicitly enunciated. See also Joined Cases 7/56 and 3/57 to 7/57 Algera and Others v Common Assembly of the ECSC [1957] ECR 39, 55; Cases 42 and 49/59 S.N.U.P.A.T. v High Authority [1961] ECR 53; Case 14/61 Koninklijke Nederlandsche Hoogovens en Staalfabrieken v ECSC High Authority [1962] ECR 253.

Actions of public bodies shall not interfere with vested rights and final legal situations except where it is imperatively necessary in the public interest.

Legitimate expectations shall be duly taken into account where an administrative decision is cancelled or revoked.

The principle of proportionality

This is a criterion for the legality of any act of Union law.

Law: Article 5(4) TEU ‘Under the principle of proportionality,the content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties […]’.

CJEU: requires that any measure of the European administration be based on law; to be appropriate and necessary for meeting the objectives legitimately pursued by the act in question; where there is a choice among several appropriate measures, the least onerous measure must be used; and the charges imposed must not be disproportionate to the aims pursued.

Cases: See e.g. Case C-265/87 Schräder v Hauptzollamt Gronau [1989] ECR I-2237 para 21. See also e.g. Case C 343/09 Afton Chemical v Secretary of State for Transport [2010] ECR I 7027, para 45, and Joined Cases C 581/10 and C 629/10 Nelson and Others v Deutsche Lufthansa AG (C-581/10) and TUI Travel and Others v Civil Aviation Authority (C-629/10) [2012] published in the electronic Reports of Cases, para 71.

Next to legislative action as provided for in Protocol n° 2 on the application of the principles of subsidiarity and proportionality.  The principle of proportionality is applicable as criteria of legality of acts of European administration as results from Articles 52(1) of the Charter of Fundamental Rights of the European Union and Article 5(4) TEU.

The right to an effective remedy

Cases: Case 85/76 Hoffmann-La Roche v Commission [1979] ECR 461, para. 9; Case 222/84 Johnston v Chief Constable of the Royal Ulster Constabulary [1986] ECR 1651, para 19.

This right is enshrined in Article 47 of the Charter:

Article 47 Charter: ‘Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article”.

In Articles 6 and 13 European Convention of Human Rights;

This is recognised as a general principle of EU law.  It is a key component to a legal system under the rule of law.

Neither the EU nor Member States can render virtually impossible or excessively difficult the exercise of rights conferred by EU law.

Cases: See e.g. Case C 128/93 Fisscher v Voorhuis Hengelo BV and Stichting Bedrijfspensioenfonds voor de Detailhandel [1994] ECR I 4583, para. 37; Case C-261/95 Palmisani v Istituto nazionale della previdenza sociale (INPS) [1997] ECR I-4025, para 27; C-453/99 Courage and Crehan v Courage Ltd and Others [2001] ECR I-6297, para 29; Case C 78/98 Preston and Others [2000] ECR I 3201, para. 39; Case C-187/00 Kutz-Bauer [2003] ECR I-2741, para. 57; Case C-30/02 Recheio-Cash & Carry [2004] ECR I-6051, paras 17, 18; Case C-212/04 Adeneler and Others [2006] ECR I-6057, para. 95; Joined Cases C-231/06 to C-233/06 Jonkman and Others [2007] ECR I-5149, para. 28.

They are obliged to guarantee real and effective judicial protection:

Cases: Case 14/83 von Colson [1984] ECR 1891, para 23.

And are barred from applying any rule or applying any procedure which might prevent, even temporarily, EU rules from having full force and effect.

Case C-213/89 Factortame [1990] ECR I-2433, paras. 19, 20.

The principle of good administration

This is naturally of particular relevance to administrative procedures.

According to the Charter the right to good administration requires that decisions be taken pursuant to procedures which guarantee fairness, impartiality and timeliness.

Good administration includes the right to be given reasons and the possibility of claiming damages against public authorities who have caused harm in the exercise of their functions.

Good administration also requires the protection of the rights of defence and of language rights.

In addition, good administration extends to information rights which include privacy and business secrets as well as access to information.

It is enshrined in Article 41 of the Charter synthesizing some of the case law of the Court of Justice in this field

Cases: The CJEU has referred to good administration principles since the very early case-law: Joined Cases 7/56, 3/57 to 7/57 Algera and Others v Common Assembly of the ECSC [1957] ECR 0039; Case 32/62 Alvis [1963] ECR 49, para 1A; Joined Cases 56 and 58/64 Consten and Grundig v Commission [1966] ECR 299; Case 64/82 Tradax v Commission [1984] ECR 1359; see the Explanations Relating to the Charter Of Fundamental Rights, Doc. 2007/C 303/02, at

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri =OJ:C:2007:303:0017:0035:en:PDF

Sub-Principles of the principle of good administration:

The duty of care

This includes the right of every person to have his or her affairs handled impartially, fairly and within a reasonable time: Charter, Article 41(1).

It obliges the administration to carefully establish and review all the relevant factual and legal elements of a case taking into account not only the administration’s interests but also all other relevant interests, prior to making decisions or taking other steps.

AG van Gerven in Case C-16/90 Eugen Nölle v Hauptzollamt Bremen –Freihafen [1991] ECR I-5163; Case C-269/90 TU München v Hauptzollamt München Mitte [1991] ECR I-5469, para. 14.

Impartiality requires the absence both of arbitrary action and of unjustified preferential treatment including personal interest:

Case T-146/89 Williams v Court of Auditors [1991] ECR II-1293, para. 40; Case T-305/94 Limburgse Vinyl Maatschappij v Commission [1999] ECR II-931, paras. 317ff.

Timeliness, which pertains to the principle of fairness, means that decisions have to be taken within a reasonable time: Article 24 fourth subparagraph TFEU ; Article 20(2)(d) TFEU ; Article 41 (1) Charter

This is justified in part on the basis that slow administration is bad administration:  AG Jacobs in C-270/99 P Z v Parliament [2001] ECR I-9197, para. 40 with reference to Art. 41 of the Charter and claiming that this was ‘a generally recognised principle.’

And it might also be in violation of the concept of legal certainty.

The right to a fair hearing

This must be observed in all proceedings initiated against a person which are liable to culminate in a measure adversely affecting that person.

Case T-306/01 Yusuf and Al Barakaat International Foundation v. Council and Commission [2005] ECR II-3533, para. 325.

That principle (audi alteram partem or audiatur altera pars) is addressed in Article 41(2)(a) and (b) Charter;

Article 41(2)(a) Charter: The right to good administration includes: ‘the right of every person to be heard, before any individual measure which would affect him or her adversely is taken;’ ; Article 11(1) ‘The institutions shall, by appropriate means, give citizens and representative associations the opportunity to make known and publicly exchange their views in all areas of Union action’ and (3) TEU ‘The European Commission shall carry out broad consultations with parties concerned in order to ensure that the Union’s actions are coherent and transparent.’

It cannot be excluded or restricted by any legislative provision:

Case T-260/94 Air Inter v. Commission [1997] ECR II-997, para. 60; case C-135/92 Fiskano v. Commission [1994] ECR I-2885, para. 39

The right to a fair hearing requires that the party concerned must receive an exact and complete statement of the claims or objections raised and must also be given the opportunity to make its views known on the truth and relevance of the facts and on the documents used.

See, e.g., Case 100/80 to 103/80 Musique Diffusion française v Commission [1983] ECR 1835, para. 10; Case 121/76 Moli v Commission [1977] ECR 1971, para. 19; Case 322/81 Michelin v Commission [1983] ECR 3461, para. 7; Case C-328/05 SGL Carbon v Commission [2007] ECR I-3921, para. 71. In Joined Cases C-402/05 P and Case C-415/05 P Kadi v Council and Commission [2008] ECR I-6351, paras. 338-352, the Court held that overriding considerations of safety or the conduct of international relations might justify that certain matters may not be communicated to the persons concerned, but do not allow for evidence used against them to justify restrictive measures or for them not to be afforded the right to be informed of such evidence within a reasonable period after those measures were taken.

The right of access to the file is essential in order to enjoy the right to a fair hearing. The right of access to the file is the right to get full information on matters which may affect a person’s position in an administrative procedure, especially where sanctions may be involved.

Case 270/82 Estel v Commission [1984] ECR 1195, paras. 13ff.; Case 64/82 Tradax v Commission [1984] ECR 1359, paras. 21f.; Case C-34/89 Italy v Commission [1990] ECR I-3603, paras. 14f.; Case T-100/92 La Pietra v Commission [1994], ECR (civil service) I-A-83, II-275, paras. 43ff.; Case C-54/95 Germany v Commission [1999] ECR I-35, para. 118.

It includes the right to get the administration’s response to complaints or representations,

Case 179/82 Lucchini Siderurgica v Commission [1983] ECR 3083, para. 27; Cases 96-102 and 104-106 and 110/82 NV IAZ International Belgium v Commission [1983] ECR 3369, paras. 12ff.

And to receive notice of the outcome of procedures and of decisions made:

Case 120/73 Lorenz v Germany [1973] ECR 1471, para. 5; Case 121/73 Markmann v Germany [1973] ECR 1495, para. 5; Case 122/73 Nordsee v Germany [1973] ECR 1511, para. 5; Case 141/73 Lohrey v Germany [1973] ECR 1527, para. 5; see also Ralf Bauer, Das Recht auf eine gute Verwaltung im Europäischen Gemeinschaftsrecht (Frankfurt/Main: Peter Lang, 2002) 64.

This includes information related to the rights of appeal.

Case 41/69 Chemiefarma v Commission [1970] ECR 661, para. 27.

See also Commission ‘Code of Good administrative behaviour’, Point 3, third indent:

‘Where Community law so provides, measures notified to an interested party should clearly state that an appeal is possible and describe how to submit it, (the name and office address of the person or department with whom the appeal must be lodged and the deadline for lodging it).Where appropriate, decisions should refer to the possibility of starting judicial proceedings and/ or of lodging a complaint with the European Ombudsman in accordance with Article 230 or 195 of the Treaty establishing the European Community.’ European Ombudsman ‘Code of Good administrative behaviour’, Article 19 – indication of the possibilities of appeal: ‘A decision of the Institution which may adversely affect the rights or interests of a private person shall contain an indication of the appeal possibilities available for challenging the decision. It shall in particular indicate the nature of the remedies, the bodies before which they can be exercised, as well as the time limits for exercising them. Decisions shall in particular refer to the possibility of judicial proceedings and complaints to the European Ombudsman under the conditions specified in, respectively, Articles [263] and Articles [228 TFEU].’

The duty to give reasons

The duty concerns decisions and arises from Article 296(2) TFEU.  It is recognised as a right under Article 41(2)c) of the Charter of Fundamental Rights of the European Union as well as being an essential component of the right to an effective remedy recognised in Article 47 of the Charter of Fundamental Rights of the European Union.

The obligation to give reasons comprises an indication of the legal basis of the act, the general situation which led to its adoption and the general objectives which it intended to achieve:

Case 5/67 Beus GmbH v Hauptzollamt München [1968] ECR 83, 95 (English Special Edition 83); See also Case T-13/99 Pfizer Animal Health v Council [2002] ECR II-3305, para. 510; Case T-70/99 Alpharma v Council [2002] ECR II-3495, para. 394; Case C-304/01 Spain v Commission [2004] ECR I-7655, para. 51; Case C-184/02 Spain and Finland v European Parliament and Council [2004] ECR I-7789, para. 79; Case C-342/03 Spain v Council [2005] ECR 1975, para. 55.

The statement of reasons must disclose in a clear and unequivocal fashion the reasoning followed by the authority which adopted the measure in such a way as enable the persons concerned to decide if they want to defend their rights by an application for judicial review.

Case C-269/90 TU München v Hauptzollamt München Mitte [1991] ECR I-5469, paras. 14, 26.

The principles of transparency and of participatory democracy

Article 10(3) TEU: ‘Every citizen shall have the right to participate in the democratic life of the Union. Decisions shall be taken as openly and as closely as possible to the citizen.’ Articles 11(1) and (3) TEU require Union institutions to hear views and opinions on EU measures and especially enter into consultation procedures.

These rights and obligations are applicable also to situations where the proceedings lead to the adoption of an act of general application including decisions with general applicability. In order to ensure that such hearing can effectively take place, active information of the public and structured means of feedback and response should be created.

The right of access to documents

See Regulation No 1049/2001.

Under Article 15 (3) TFEU:

Article 15(3) TFEU: ‘Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, shall have a right of access to documents of the Union’s institutions, bodies, offices and agencies, whatever their medium, subject to the principles and the conditions to be defined in accordance with this paragraph…. Each institution, body, office or agency shall ensure that its proceedings are transparent and shall elaborate in its own Rules of Procedure specific provisions regarding access to its documents, in accordance with the regulations referred to in the second subparagraph….’; Charter, Article 42: ‘Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, has a right of access to documents of the institutions, bodies, offices and agencies of the Union, whatever their medium.’

And under Article 42 of the Charter

Article 42 Charter: ‘Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, has a right of access to documents of the institutions, bodies, offices and agencies of the Union, whatever their medium.’

This is a fundamental right of EU law and also a basic condition of an open, efficient and independent European administration. Any limitation of this principle must be narrowly construed to comply with the criteria of Article 52(1) of the Charter of Fundamental Rights of the European Union and must therefore be based on law, must respect the essence of the right and follow the criteria of proportionality.

The right to protection of personal data

This is embedded in Article 16(1) TEU and in Article 8 of the Charter.

Regulation (EC) no 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data.

Special attention needs to be dedicated to data protection aspects of complex and intertwined administrative procedures involving as well EU institutions, bodies, offices and agencies as member States’ authorities, which are related to interadministrative information exchange and databases.

Given that many administrative procedures are inextricably linked to IT systems (e.g. EU PILOT for infringements, CHAP for COM communication with complainants, ARES for COM document management, GEDA and EPADES for EP document management, etc.),

The principle of transparent information management

This includes duties to record data processing activities.  See European Ombudsman ‘European Code of Good administrative behaviour’, Article 24 – Keeping of adequate records: ‘The Institution’s departments shall keep adequate records of their incoming and outgoing mail, of the documents they receive, and of the measures they take.’

This duty supports data protection and also fosters inter-administrative accountability and interaction with regard to collaborative information gathering. According to the principle of data quality, data used by the EU Administration shall be accurate, up-to-date and lawfully recorded. The data supplying authority shall be responsible for ensuring that the data are accurate, up-to-date and lawfully recorded.

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