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What is the distinction between a decision and a recommendation in the Withdrawal Agreement?

Article 166 says decisions are legally binding.

Are recommendations legal demands placed upon the parties to give effect to a decision?

Article 166

Decisions and Recommendations

  1. The Joint Committee shall, for the purposes of this Agreement, have the power to adopt decisions in respect of all matters for which this Agreement so provides and to make appropriate recommendations to the Union and the United Kingdom.

  2. The decisions adopted by the Joint Committee shall be binding on the Union and the United Kingdom, and the Union and the United Kingdom shall implement those decisions. They shall have the same legal effect as this Agreement.

  3. The Joint Committee shall adopt its decisions and make its recommendations by mutual consent.

2

Article 166 seems reasonably clear on this point:

A decision by the Joint Committee has the affect of law in both the UK and EU, but can only be made with respect of matters which the Agreement specifically authorises the Joint Committee to govern.

A recommendation is a request to the constitutional bodies of the EU and UK to enact some law that the Joint Committee thinks is necessary but is not (through the Withdrawal Agreement) authorised to make.

  • Are recommendations open to refusal by the state government? – 52d6c6af Nov 1 '19 at 14:28
  • @Ben legally, yes. It might be politically difficult, but if the Withdrawal Agreement has not specifically delegated legislative authority on a matter to the Joint Committee then there's nothing the JC can legally do to force the UK or the EU to legislate in a way that it wants them to. – Dan Scally Nov 1 '19 at 14:32
  • My interpretation was that on legislative matters delegated to the JC (or arbitration) then the JC or arbitration committee would make decisions and tell the parties to enact those decisions via a "recommendation" that was, in effect, binding. Why am I wrong? – 52d6c6af Nov 1 '19 at 15:27
  • @Ben I can see why you read it that way, but I think Paragraph 2 negates that reading: The decisions adopted by the Joint Committee shall be binding...and the Union and the UK shall implement those decisions. There's no mention of a requirement for the Joint Committee to make recommendations to the Union and UK before they become binding. – Dan Scally Nov 1 '19 at 15:54

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