The new EU-UK Trade and Cooperation Agreement (TCA), which regulates cross-border trade in goods and services, was adopted on 24 December 2020. It includes many provisions important to the UK legal profession except for the rights of audience or legal representation services in courts at EU level (Court of Justice of the EU, CJEU, and General Court of the EU, GCEU).
This is standard practice in all EU free trade agreements (FTAs) which means that from 1 January 2021, UK lawyers were no longer entitled to represent clients in front of EU-level courts.
This loss of rights by UK lawyers stems from Article 19 of the Statute of the CJEU which authorises lawyers to represent clients in its proceedings as long as they are entitled to practise before a court of a Member State of the EU or the Agreement on the European Economic Area (EEA). Authorisation to represent clients before the courts in the EU or EEA states is associated with the EU or EEA qualification and full membership of the Bar. Following the UK’s withdrawal from the EU and the end of the transition period, the UK qualification is no longer an EU or EEA one.
However, there are three important exceptions to this rule. These are set out in the Withdrawal Agreement (WA) (2019) which regulates various aspects of the UK withdrawal from the EU.
Cases pending before the CJEU
UK lawyers will be able to represent their clients in all cases that were brought by or against the UK and which follow from the requests for preliminary rulings from the UK courts, before the end of the transition period (Article 86 of the WA).
The date that marks the bringing of the case to the CJEU is the date when the document initiating the proceedings has been registered by the registry of the CJEU (Article 86.3 of the WA). This right applies to all stages of proceedings, including appeal before the CJEU and proceedings before the General Court after a case has been referred back to it.
Similarly, proceedings before EU agencies and bodies initiated before the end of the transition period will continue, and UK lawyers will continue to represent clients in those proceedings.
However, importantly, any appeal from the EU Intellectual Property Office (IPO) to the EU Courts will not be covered by the WA, and parties to the appeal proceedings will need to be represented by those qualified in the EU/EEA, as required by Article 19 of the CJEU.
Infringement actions (four years after the end of the transition period)
Another case where a UK lawyer will be able to represent or assist a party in proceedings before the CJEU are infringement actions under Article 87 of the WA.
Firstly, there are cases where the European Commission has a right to take the UK is to the Court for an alleged failure to fulfil its obligations under the Treaties until the end of the transition period. According to Article 129(3), during the transition period the UK cannot engage in any action or initiative which may harm Union’s interests. This applies in particular to actions in the framework of any international organisation, agency, conference or forum of which the UK is a party in its own right. The Commission has the right to bring an action within 4 years of the end of transition in relation to what they consider to be a failure to fulfil an obligation.
Secondly, there are cases where the UK may fail to comply with or give legal effect to decisions:
- adopted by institutions, bodies, offices and agencies of the Union before the end of the transition period (under Article 95(1)); or
- adopted in the ongoing administrative procedures (Article 92) initiated before the end of the transition period; or
- adopted in new State aid procedures (regarding aid granted before the end of the transition period) and European Anti-Fraud Office procedures (regarding facts occurring before the end of the transition period or any customs debt arising after the end of the transition period from the procedures under Article 49 of the WA) (Article 93).
Thirdly, there are cases where the UK would be subject to the EU law after the end of the transition period according to Article 136 of the WA (own resources of the EU) and Article 138(2) of the WA (UK’s participation in the EU programmes under the Multi-annual Financial Framework, or MFF, 2014-2020). The CJEU will retain jurisdiction over these matters and the Commission will thus be able to bring new cases in these matters to it and these would apply to the UK.
In all above cases, the Commission can bring the matter before the CJEU within four years after the end of the transition period (that is, until 31 December 2024).
Cases concerning citizens’ rights (eight years after the end of the transition period)
In cases concerning citizen’s rights, started at first instance before a court or a tribunal in the UK, that court or a tribunal will be able to request preliminary ruling from the CJEU within eight years of the end of the transition period (Article 158 of the WA).
Also in these cases, UK lawyers will be entitled to represent or assist any parties and will be treated as lawyers authorised to practise before courts of Member States representing or assisting a party before the CJEU (Article 161 of the WA).
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