18 May 2021
One of the many practical impacts of the UK’s departure from the EU was the need for the EU to decide on the future of the European Commission Representation in the UK, and for the UK and the EU to agree on the privileges and immunities that the UK (as a “third country”) would confer on the EU’s post-Brexit delegation, its staff and its property in the UK.
The UK initially argued that it would set a precedent to treat an international body in the same way as a nation State and would open the floodgates to other international organisations seeking the same status. The EU, on the other hand, maintained that 142 other host States of EU delegations had all granted “these delegations and their staff a status equivalent to that of diplomatic missions of states under the Vienna Convention”. Prior to the UK’s departure from the EU (i.e., until 1 February 2020), the status of the European Commission Representation in the UK was regulated by EU law.
On 5 May 2021, the UK and EU jointly announced that they had reached an agreement on the status of the EU delegation to the UK (the Establishment Agreement). Their agreement settles the question of what privileges and immunities the UK will confer on the EU’s post-Brexit Delegation to the UK, its staff and its property. This had been a highly contentious issue between the parties for months. The EU had been seeking, and the UK initially refusing, to accord to the EU the diplomatic privileges and immunities typical of foreign States. This Insight sets out the factual and legal background to the development and outlines the parties’ opposing positions prior to reaching an agreement.
Background
The Treaty of Lisbon, which entered into force on 1 December 2009, conferred on the European Union (EU) (replacing and succeeding the European Community) full international legal personality. This gave it the ability to negotiate and conclude international treaties, to join international organisations in its own right and to accede to multilateral conventions in areas within its competence. It also prompted the creation by Council Decision 2010/427/EU (the Decision) of the European External Action Service (EEAS), whose tasks include supporting and working in cooperation with the diplomatic services of the Member States, “in order to ensure consistency between the different areas of the Union’s external action and between those areas and its other policies.” According to the Decision, the Union may decide to open or close a Union delegation to (i.e., a diplomatic presence in) third countries (i.e., non-Member States, including now the UK) and to international organisations.
Prior to the Lisbon Treaty and the Decision, the European Community already maintained diplomatic presences in third countries and to international organisations, which were known as European Commission delegations. The European Commission had been “largely successful” in obtaining diplomatic privileges and immunities for such delegations (see Mauro Gatti, “Diplomats or fonctionnaires? The Contested Status of the EU’s ‘Embassy’ in the UK”, (EJIL:Talk!, 2021), available here (Gatti, 2021)). However, as Gatti (id.) observed, the Lisbon Treaty prompted the EU to become more “assertive” in this respect.
This assertiveness is reflected in the Decision, which the UK (while a Member State) itself approved. According to Article 5(6), the High Representative of the Union for Foreign Affairs and Security Policy (the High Representative) is responsible for “enter[ing] into the necessary arrangements with the host country, the international organisation, or the third country concerned”; and, in particular, for taking “the necessary measures to ensure that host States grant the Union delegations, their staff and their property, privileges and immunities equivalent to those referred to in the Vienna Convention on Diplomatic Relations of 18 April 1961 [(Vienna Convention)].”
As Gatti also reports, drawing from an EEAS “EU Delegations’ Guide” 2020 (not public), delegations are required to “engage with host countries to establish ‘the principle of equality with States’” – to make sure that the EU is not seen as a traditional international organisation, but instead a “State-like international subject” (Gatti, 2021).
The Vienna Convention on Diplomatic Relations
The Vienna Convention has been described as a codification of “the diplomatic law concerning permanent missions in other States” (Holger P Hestermeyer, “Vienna Convention on Diplomatic Relations (1961)” (Max Planck Encyclopedias of International Law, 2009), para. 11). Separate legal instruments address the diplomatic law concerning special missions, and permanent missions to international organisations. Under Article 2 of the Vienna Convention, States establish diplomatic relations and permanent diplomatic missions “by mutual consent”. As Hestermeyer notes, the right to send and receive diplomatic envoys “generally follows from recognition as a State”, although a number of other entities also enjoy such right (like the Holy See). Under the Vienna Convention and customary international law, the premises, archives and documents of a diplomatic mission are inviolable (Articles 22 and 24). In addition, State diplomats are granted immunities detached from the exercise of their functions (i.e., ‘personal’ immunity) including, inter alia, immunities from detention, criminal jurisdiction and taxation (Articles 29, 31 and 34).
Whilst the existence of privileges and immunities under customary international law applicable to missions of States, as codified by the Vienna Convention, is uncontroversial, the same cannot be said of the offices and diplomats of international organisations. Notably, their status is normally governed by ad hoc international agreements, according to which the staff of these organisations would typically enjoy only the immunity necessary for the exercise of their functions (‘functional’ immunity) (see Gatti, 2021).
The parties’ positions
The UK appears to have first communicated to the EU its intention not to grant its mission in the UK a State-like diplomatic status during the post-Brexit transition period (the Transition Period) (see here). The UK’s late 2020 draft proposal for an establishment agreement relating to the mission then prompted the EU High Representative to write to the UK Foreign Secretary, expressing “serious concerns” about the UK’s position, particularly in relation to the UK’s proposal not to “grant the customary privileges and immunities for the delegation and its staff”. (The content of the leaked letter was reported by the media, such as the BBC here.) According to a European Commission spokesperson, the UK’s position contrasted with that of the 142 other host States of EU delegations, each of whom had granted “these delegations and their staff a status equivalent to that of diplomatic missions of states under the Vienna Convention” (also reported here).
The UK Foreign Office, for its part, stated that the “EU, its Delegation and staff [would] receive the privileges and immunities necessary to enable them to carry out their work in the UK effectively” (in other words, functional immunity). It argued, however, that it would set a precedent to treat an international body in the same way as a nation State and would open the floodgates to other international organisations seeking the same status (reported here).
The parties held their respective positions for months, even following the end of the Transition Period. In a written answer before the UK Parliament on 22 January 2021, the Parliamentary Under-Secretary at the Foreign, Commonwealth and Development Office confirmed that discussions with the EU on the matter were “ongoing”, and that, pending the conclusion of an Establishment Agreement, “the Head of the EU Delegation and his staff [would] enjoy privileges and immunities under Protocol 7 to the EU Treaties” (the statement is available here). Protocol (No 7) on the privileges and immunities of the European Union (here) to the Treaty on the Functioning of the European Union (TFEU) sets out the general provisions on the EU’s privileges and immunities under EU law. It ceased to bind the UK after the end of the transition period on 31 December 2020.
On 25 January 2021, the UK Minister of State at the Foreign, Commonwealth and Development Office confirmed that the UK continued to “engage with the [EU] on the long-term arrangements for the EU delegation to the UK”, but the UK’s intention was to ensure that the EU delegation and its staff would “have the privileges and immunities they need to function effectively” (see the statement here).
Also on 25 January 2021, the EU High Representative told reporters that “[t]he external status of the [EU] is recognised by countries and international organisations around the world” and that it expected the UK to treat the EU delegation “accordingly and without delay” (see here). He added that granting “reciprocal treatment based on [the Vienna Convention] is standard practice between equal partners”.
The privileges and immunities of EU delegations are not precisely defined in general international law. The EU is clearly an international organisation under international law, albeit a sui generis one, and, as mentioned above, the extent of privileges and immunities of international organisations is generally left to the conclusion of ad hoc agreements. However, the practice of third States has been consistent in granting EU delegations State-like privileges and immunities, in accordance with the Decision. That practice, if coupled with the requisite opinio juris, might point in the direction of the formation of a rule of customary international law in relation to the treatment of EU delegations, if not one has already crystallised.
The resolution
In a joint statement issued on 5 May 2021, UK Foreign Secretary Dominic Raab and High Representative Josep Borrell announced their agreement, by which “[t]he EU Ambassador will have a status consistent with heads of missions of states” and “EU Delegation staff will have the privileges and immunities needed to function effectively, while allowing for effective administration of justice”. The text of the Establishment Agreement – once published – will clarify the exact scope of the privileges and immunities that will be granted to the EU delegation.
The UK-EU joint statement on the Establishment Agreement is available here.
For further information, please contact jiries.saadeh@fiettalaw.com; laura.rees-evans@fiettalaw.com; or tommaso.buzzelli@fiettalaw.com.