Throughout this piece, the focus shall be on the potential agreements that could be reached once the UK leaves the EU making reference to certain countries such as Norway and Switzerland, who have alternate agreements to ensure they comply with their respective laws. As well as this the key mechanisms the EU enforces shall be discussed, these include direct effect supremacy indirect effect and state liability. A key mechanism is a direct effect that is regarded as one of the twin pillars of European law. The EUR Lex website states it is the power to directly invoke European acts before national and European courts. The direct effect may apply to Treaty articles secondary legislation such as regulations directives and decisions and finally treaties with third countries In Van Gend en Loos according to the EUR Lex website the Court stated that European law not only engenders obligations for EU countries but also rights for individuals. Direct effects intensity is twofold vertical and horizontal. The vertical direct effect according to Practical Law means the EU legislation can be enforced against the state or emanation of the state and can be viewed in Defrenne v SABENA which is a case involving gender-equal pay.
The horizontal direct effect is where it may be enforced against another individual. An example of legislation that has both vertical and horizontal direct effect is the 2007 TFEU. Direct effect has three criteria, these were established in Reyners v Belgium and are that the provision must be clear and unambiguous sufficiently precise for judicial application it must be unconditional and that its operation must not be dependent upon further action being taken by the Union or national authorities it is noteworthy that for directives the ECJ in Ratti gave the specific condition that the time limit given for the implementation of the text must have expired Section 2 1 of the ECA 1972 states that provisions with direct effect are automatically incorporated without further enactment and legally binding in the UK without the need for a further Act of Parliament. Supremacy is regarded as the second of the twin pillars of European law it is a judicial construct that is not found in any of the Treaties, however, Declaration 17 of the Treaty of Lisbon somewhat mentions primacy. The notion of supremacy was mentioned briefly in Van Gend en Loos where it was stated the Community constitutes a new legal order in international law for whose benefit the States have limited their sovereign rights albeit within limited fields and the subjects of which comprise not only the member States but also their nationals. However, mainly it was established in Costa v ENEL, where the judgment arrived at, was that when EU law conflicts with national law the European law must prevail Factortame no 2 affirmed EU laws supremacy over national law as the Merchant Shipping Act 1988 which made amendments to the previous 1984 act was said to be an attempt to ensure effectiveness but discriminatory also thus the EU law was held supreme. The indirect effect is defined on Practical Law as a principle of interpretation whereby the courts of the member states of the EU must interpret national legislation as far as possible in a manner that is consistent with provisions of EU law even if they do not have a direct effect. The indirect effect does not have horizontal direct effect meaning it is not invocable between private persons. It was recognized by the ECJ for the first time in Von Colson which states national courts are required to interpret their national law in the light of the wording and the purpose of the directive the case involved a German female who was refused a job based on her gender.
The compensation given at first was merely for her travel costs however the court stated that compensation must, in any event, be adequate in relation to the damage sustained and must, therefore, amount to more than purely nominal compensation such as for example the reimbursement only of the expenses incurred in connection with the application. State liability according to Practical Law means that the State can be sued for damages for breaching EU law where the EU measure confers clearly identifiable rights on individuals the state's breach is sufficiently serious and there is a direct causal link between the breach and the loss. In Francovich it was stated the principle of State liability for harm caused to individuals by any breaches of Community law for which the State can be held responsible is inherent in the system of the EEC Treaty This point can be expanded upon as Article 4 3 of the TEU is the good faith clause which states that it is a Member States obligation to pass domestic law because of a directive. In Francovich the company went insolvent yet Italy refused to pay ex-employees wages it was held that Italy was liable as the directive gave the right to individuals the rights could be identified from the directive and there was a causal link between the states failure and the individual's damage suffered. This case was key as state liability was established for directives The House of Commons Briefing paper states The principle of State liability for damage caused to individuals by breaches of EC law was clarified five years later in the judgments in Brasserie du Pêcheur and in Factortame when Francovich was extended beyond a failure to implement a Directive to any State action incompatible with Treaty provisions or other EU laws which grant rights to individuals. This quotation is used to not only emphasize the above point that Francovich only established state liability for directives but to show that Factortame no 3 furthered state liability to more European law. It was stated in Brasserie du Pecheur SA v Federal Republic of Germany that in English law state liability in damages is a creature of case law this point shows that state liability is viewed as a last resort and is a gap filler.
The UK held a referendum on the 23rd June 2016 the Electoral Commission shows the results were 52 in favor of leaving and 48 in favor of remaining within the EU. Correspondingly there are numerous post Brexit deals that the UK could strike with the EU and the ones that will now be discussed in more detail are Norway model,l Switzerland, Canada, and WTO. The BBC article notes that Norway is a Member of the European Economic Area and as a result has full access to the single market. The single market is defined in the Oxford English Dictionary as an association of countries trading with each other without restrictions or tariffs. In relation to this should the UK follow the Norway model the cost of trading to the country would remain the same. However, there are certain issues Norway has no say over how the rules of the single market are created. Therefore the UK would have to follow rules yet would have no input over these rules they would have to follow. Furthermore, Norway has to pay a contribution to the EU budget and has to sign up for all the rules of the club including its common regulations and standards. Norway is also a member of EFTA Practical Law states there is free trade between the EFTA members under the EFTA Convention the article further goes on to mention EFTA is not a customs union so does not impose on its members a common external tariff EFTA enters into FTAs with non-EU countries on behalf of all the EFTA members. The EFTA members can also decide their own trade policies and conclude independent FTAs with non-EU countries. Being a part of the EEA means that Norway trade with the EU under the terms of the EEA agreement. Should the UK pursue a Norway type deal European cases would be held in the EFTA court as opposed to the ECJ State liability is still inherent within the EFTA courts as proved in Karlsson v Iceland which stated it was a principle of an EEA. State was obliged to provide compensation for loss and damage caused to individuals as a result of breach of EEA obligations for which that State could be held responsible Should this deal be the one chosen the UK would have to follow certain EU regulations so it is arguable that direct effect may still be applicable Switzerland is a member of EFTA but not a member of the EEA. Switzerland has many bilateral agreements that govern their access to the EU market the BBC reported that Switzerland has agreed more than 120 bilateral agreements with Brussels these are international texts between Switzerland and the EU which ensure Switzerland complies with EU law. Any disputes go to a joint committee and a deal is struck there. Switzerland also makes a contribution to the EU budget notably though this contribution is smaller than Norway's. The BBC article further makes reference to the fact that Switzerland does not have full access to the single market. Areas of single market access for Switzerland is mainly where EU law applies. Switzerland, therefore, has no state liability. However, there is some form of direct effect present as Switzerland updates domestic legislation to follow EU law in areas in which it has access to the single market It should be noted that the HM Government Report states if Switzerland fails to introduce domestic legislation reflecting certain EU rules the EU can block Switzerland from access to the related parts of the Single Market. If the UK were to pursue a Switzerland type deal post-Brexit the enforcement of European law would be impacted heavily.
This is because according to a European Parliament briefing paper Monitoring is hard as there is no official surveillance institution like ESA. Enforcement is also difficult given that there are no official sanctions, no implementation deadlines and no court ruling over the sectoral bilateral agreements in a universal matter offering last resort settlements in all cases. Canadas free trade deal CETA is yet to come in to force. The BBC article states it has been in the making for seven years though The article further states that it gives Canada preferential access to the EU single market without all the obligations that Norway and Switzerland face eliminating most trade tariffs. The HM Government Report states that the EU Canada Trade Agreement offers significantly less access to the Single Market than the UK currently enjoys. Furthermore, Canada is not subject to an obligation to make contributions to the EU's budget. Finally, a Free Trade Agreement along the lines of EU Canada would bring less advantageous terms for UK trade than those we currently enjoy with particular issues for UK services losing access to the Single Market. Because the deal between Canada and the EU has not come into force yet, enforcement will obviously be very weak as the lack of disputes mean it is inconclusive whether any of the key mechanisms apply A WTO only model the HM Government Report describes as representing a minimum threshold. It would be the most definitive break with the EU offering no preferential access to the Single Market, no wider cooperation on crime or terrorism, no obligations for budgetary contributions or free movement of people. There is no deal with the EU should the UK follow a WTO style deal Due to the lack of a deal between the UK and the EU should this type of model be used post-Brexit, direct effect would be inapplicable supremacy would not exist and state liability would also be non-existent. There are numerous options for the UK post-Brexit, the models discussed cover a variety of enforcement opportunities arguably a Norway style deal would be the most beneficial for the UK. This would be the softest possible Brexit due to the lack of changes made to the enforcement of EU law. In this way, it would be far easier for the EU to ensure that the UK complied with EU law also.
