4. The EU-UK Trade and Cooperation Agreement in the EU legal order
As noted earlier, P&O North Sea Ferries Limited has refused to pay the invoices for the mandatory use of the VTS system since 1996. Following ‘Brexit’, the withdrawal of the UK from the EU was governed by the ‘Withdrawal Agreement’, which established a transition period during which EU law remained applicable to the UK.(1) Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community [2019] OJ C 384 I/1, 1-177, Articles 126 and 127. This transition period expired on 31 December 2020. Since then, legal relations between the United Kingdom and the European Union have been governed by the TCA.
The P&O companies invoked Article 191(1) of the TCA, which provides that ‘each Party shall implement the principle of unrestricted access to the international maritime markets and trades on a commercial and non-discriminatory basis’. They claimed that this provision requires that maritime traffic to the EU from the UK is not to be treated less favourably than maritime traffic between Member States. The P&O companies submitted that, in light of that provision, the freedom to provide services continues to apply after the UK’s withdrawal from the EU and that the referring court should therefore also apply Regulation 4055/86 to the part of the invoices relating to the period following that withdrawal.
The CJEU did not agree with P&O on this matter. It recalled that competent EU institutions and the third States could, in principle, agree what effect the provisions of the agreement will have within the internal legal order of the parties. The Court recalled its earlier jurisprudence, according to which ‘[o]nly if that question has not been settled by the agreement does it fall to be decided by the courts having jurisdiction in the matter, and in particular by the Court of Justice, in the same manner as any question of interpretation relating to the application of that agreement in the European Union.’(2) Judgment in Vlaams Gewest (n 1), para 43. See also C‑366/10 Air Transport Association of America and Others, para 49. Nevertheless, in this case, the question of the application of Article 191 of the TCA is explicitly governed by Articles 4 and 5 of the TCA. Namely, the TCA itself provides for the approach to interpretation based on the international rules of treaty interpretation laid down in the Vienna Convention on the Law of Treaties.(3) Judgment in Vlaams Gewest (n 1), para 42.
Article 4(2) of the TCA further specifies that ‘[the TCA] [does not establish] an obligation to interpret [its] provisions in accordance with the domestic law of either Party’. Furthermore, Article 5(1) of the TCA provides that, subject to any exception, ‘nothing in this Agreement … shall be construed as conferring rights or imposing obligations on persons other than those created between the Parties under public international law, nor as permitting this Agreement … to be directly invoked in the domestic legal systems of the Parties’.(4) Judgment in Vlaams Gewest (n 1), para 42.
The CJEU concluded that after the withdrawal of the UK, maritime transport service providers established in the UK may no longer rely on EU law before the national courts of the Member States, and in particular, on Article 1 of Regulation 4055/86, read in conjunction with Article 56 TFEU, as regards facts or legal situations arising after 31 December 2020.(5) Judgment in Vlaams Gewest (n 1), para 45.