By Oliver Garner
The EU (Withdrawal) (No.2) Act 2019 (‘The Extension Act’) was passed in September 2019 before the infamous unlawful prorogation of the UK Parliament. The Act obliges the Prime Minister to request a further extension of the Article 50 period to 31 January 2020 in the event that no deal has been agreed, and Parliament has not agreed to no deal, by 19 October 2019. The ambiguity over whether the Prime Minister will comply with this legislation has raised concerns over the government’s commitment to the rule of law. On 4 October 2019, however, government submissions to the Scottish Court of Session suggested that the Prime Minister will indeed comply with the law. If the government’s new proposals for the Irish backstop do not lead to a deal, therefore, it seems that the legal issue of extension will transfer to the European level at the next European Council meeting. Continue reading
By Dora Kostakopoulou
In the domain of politics, trial and error are frequent occurrences. Through trial and error we tend to discover that political decisions, policy choices and even customary ways of doing things are no longer sustainable and thus in need of revision. There is nothing wrong in recognising mistakes or misjudgments and changing course. The doors of perception are not always fully open for human beings; information asymmetries, errors of judgement, ideological standpoints and self-interest often lead individuals to poor visualisations of the future and thus to imprudent actions. Continue reading
By Oliver Garner
Part II of the UK-EU Withdrawal Agreement provides extensive protection of the rights in the United Kingdom and the EU-27 that EU citizens currently derive from Article 21 TFEU. However, the Agreement is silent on the preservation of the rights to vote and stand as candidates in municipal and European Parliament elections that EU citizens derive from Article 22 TFEU. This ossifies a conception of EU citizenship as a status of passive ‘juridical objectity’ to the detriment of a conception of the status as one of political self-determination. This means that following the United Kingdom’s withdrawal from the European Union the voting rights of EU citizens within the United Kingdom and UK citizens within the EU-27 will revert to the discretion of the national legal orders. Therefore, I will argue in this piece that it would be more normatively desirable for the European Union’s legislature to adopt measures in order to preserve these electoral rights for UK citizens. The first section below will detail the arguments for why this would be acceptable, before the second section considers the legal methods by which this could be implemented. Continue reading
By Mark Lazarowicz
Some have assumed that one of the consequences of Brexit is that EU citizens, who can currently vote in all elections in the UK except for those which choose MPs in the UK Parliament, will lose that right once, and if, the UK leaves the EU. In fact, Brexit will not automatically mean EU citizens in UK will lose the right to vote in elections for local government and the devolved legislatures. That is because the right of EU citizens to vote in local government elections is set out in the UK’s own domestic legislation. Therefore, all the rights of EU citizens to vote in other member states arises out of EU law, because that right is now contained with UK law, the fact that UK will no longer be a member of the EU does not change that provision giving EU citizens the right to vote in local elections. In that respect, they will join the citizens of many other countries who, although they have no right deriving from a treaty to vote in UK elections, nevertheless have such a right. For example Commonwealth citizens, if they have leave to enter or remain in the UK, or do not require such leave, can register, vote, and stand in all UK elections even though there may not be any reciprocal right for UK citizens to vote in elections in that Commonwealth country. Continue reading
By Ruvi Ziegler
The UK is scheduled to leave the EU on 30th March 2019 at midnight, Brussels time, by automatic operation of EU law (Article 50(3) of the Treaty on European Union(TEU) and, indeed, according to section 20(1) of the UK’s EU (Withdrawal) Act 2018. Consequently, the UK will not be participating in the May 2019 European Parliamentary (EP), Elections. Its 73 MEPs, including the 3 MEPs representing Northern Ireland, will be gone. This post appraises, first, the ramifications of Brexit for electoral rights of EU-27 citizens resident anywhere in the UK as a ‘third country’ and, second, the unique electoral predicament of residents in Northern Ireland. It argues that, unless Member States (MS) act promptly, hundreds of thousands of their citizens, qua Union citizens, stand to be disenfranchised this coming May – a democratic outrage that can and should be averted. Continue reading
By Oliver Garner
On 22 October 2018, New Europeans and the Federal Trust held the event ‘EU citizenship rights in the shadow of Brexit’. Since that date, the end-game of Brexit has gathered pace. On 14 November, the Draft Withdrawal Agreement and political declaration on the future relationship between the UK and the EU was published. The UK government announced that a ‘meaningful vote’ would be held in the House of Commons on 11 December, before postponing on the eve of the vote leading to the Prime Minister weathering a vote of no confidence by Conservative MPs and the announcement that the vote would be held in the third week of January. Part 2 of this Agreement provides extensive protection for the legal rights of UK nationals in the EU-27 and EU citizens in the UK; however, it may be argued that this ossifies a conception of EU citizenship as one of juridical objectity rather than political self-determination. At the European level, the Court of Justice of the European Union held in its Wightman judgment on 10 December that the United Kingdom would be free to unilaterally revoke its notification under Article 50 in accordance with its own constitutional requirements. Continue reading
By Alessandra Asteriti
On 14 May 2017, the Secretary of State for Exiting the European Union David Davis was interviewed on ‘Peston on Sunday’ and the topic was, unsurprisingly, Brexit. The contentious issues of the sequencing of the negotiations according to the Council’s Guidelines for withdrawal arose. As is now known, the Chief Negotiator for the EU, Michel Barnier, has insisted that the issues of EU citizenship rights, the UK’s financial liabilities and the border between the Republic of Ireland and Northern Ireland are resolved before any discussion of the future trade relationship with the UK can proceed. This position was further affirmed in the Negotiating Directives issued by the Council on 22 May 2017 which deal exclusively with the negotiating priorities of the Withdrawal Agreement. The goal of this contribution is to point out that the plain language of Article 50 does not in fact envision the necessity of a future, separate agreement to deal with the future relationship between the EU and the UK, contrary to much debate both at UK and EU level. To be perfectly clear: I am not arguing that in fact the future relationship is not likely, or even bound, to entail such as an agreement. The argument is instead entirely predicated on the textual interpretation of the Article. Continue reading
The scope of EU fundamental rights protection and the influence of the Charter of Fundamental Rights on this scope is a much discussed topic among EU constitutional lawyers. As is well-known, the recognition of fundamental rights as part of the general principles of EU law by the Court is not new. Already in the cases of Stauder and Internationale Handelsgesellschaft, handed down in 1969 and 1974 respectively, the Court recognized fundamental rights as part of the general principles of EU law. It did so to anticipate challenges to the primacy of EU law by national constitutional courts and the Court therefore took great care in stressing the autonomous nature of EU fundamental rights protection. This means that the Court has maintained authority in determining the content of EU fundamental rights protection and thus remained the ultimate interpreter of EU law. However, before the coming into force of the Treaty of Lisbon, there was no EU catalogue of rights formally binding on the EU as such. Rather, the Court drew inspiration from international treaties and national constitutions, whilst at the same time maintaining the autonomy of the EU rights standard. With the coming into force of the Lisbon Treaty the Charter of Fundamental Rights has also become formally binding on the EU. This means there now is a binding catalogue of rights at the EU level.
A contentious issue is whether the Charter of Fundamental Rights alters the scope of the EU fundamental rights standard laid down in previous case-law of the Court. In its case law, the Court has held that fundamental rights recognized as general principles of EU law apply not only to the acts of the EU institutions but also to the acts of Member States in certain circumstances. Generally, Member States have to act in accordance with fundamental rights recognized at the EU level ‘whenever they act within the scope of EU law’. In the case-law of the Court this includes at least two situations. First, Member States are bound by the EU rights standard where the implement and enforce EU law. Second, the Member States are also bound by the EU rights standard where they derogate from EU law provisions (see cases such as Schmidberger, and ERT). However, when precisely a Member State acts within the ‘scope of EU law’ is not entirely clear. The dividing line between situations within the scope and those outside the scope of EU law often appears arbitrary, as was pointed by AG Sharpston in the case of Zambrano.