The European Law Blog will be taking a summer recess. We’ll be back end of August with new commentaries, including on key Summer developments. Please do send us on your contributions throughout this period and we will get back to you in due course. Happy Holidays to all our readers!
By Oliver Garner
An impasse in Brexit negotiations exists between the United Kingdom and the European Union regarding the jurisdiction of the Court of Justice of the European Union. This post will consider the legal viability of a proposed solution to this stalemate: a joint EU-UK court to adjudicate upon citizens’ rights. Although the proposals have limited the substantive remit of such a potential court to citizens’ rights, due to this area being the most contentious between the EU and the UK, in principle one could envisage a joint court with jurisdiction over all aspects of the withdrawal agreement. It may be argued that such a solution would be politically unacceptable for the European Union as it allows the United Kingdom to “have its cake and eat it” through a substitute for the Court of Justice over which the withdrawing state has far more influence. However, this post will focus on the legal rather than political viability of the proposal. This post will consider the proposal with a particular focus on whether the joint court could violate the Court of Justice’s stringent conditions for protecting the autonomy of the EU legal order. A comparison will be drawn to the similar proposals for an EEA court in the original EEA agreement, and the eventually established EFTA court. Finally, beyond the United Kingdom’s withdrawal, the post will move on to consider whether the idea of a joint national and European court could provide a solution to the problems that arise from the unique composite nature of the EU legal order. 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
By Gareth Davies
As the Brexit negotiations become a reality, the position of UK citizens living in other EU states, and of EU citizens living in the UK attracts ever more discussion, particularly within the UK, where there has been great political support for the idea that those already established in the UK should not simply be thrown out. Nevertheless, aspects of UK procedure and bureaucracy are making it extremely difficult for Union citizens to obtain recognition of their right to reside. At the heart of this is the lack of a UK population register and of any registration requirement, meaning that most Union citizens moving to the UK do so without formalities. That may seem refreshingly easy at first. However, it means that if a Union citizen wants the UK to recognize that they have a right of permanent residence, they have to prove retrospectively that their last five years have been both in the UK, and in compliance with the terms of the Citizenship directive. That raises enormous evidential problems. One of these is to do with sickness insurance: while taking no active steps to require this from new arrivals, the UK takes the view that only those who were privately insured against almost all medical risks were actually lawfully present. This comes as a nasty shock to many migrant citizens – most of them, like over 90% of UK citizens, use the National Health Service rather than private insurance. The discussion below explains how this situation has arisen, and considers whether the UK’s standpoint complies with Union law. It suggests that this issue should not be ignored in Brexit negotiations, as it concerns the rights and lives of many thousands of Europeans. Continue reading
By Oliver Garner
I. Introduction: A New Initiative for UK nationals After Brexit?
On 11 January 2016, the European Commission registered a European Citizens Initiative to create a “European Free Movement Instrument”. The purpose of the Initiative is to lobby the European Union institutions to create a mechanism by which individuals may be directly granted the rights of free movement provided by EU citizenship, which is currently predicated upon nationality of a Member State in accordance with Article 20 TFEU. The proposers of the Initiative – the “Choose Freedom Campaign” – outline that their intention is not to reform the nature of Citizenship of the European Union; they concede that “the EU isn’t a government, and only Nation states can issue Citizenship”. Instead, their ambition is more limited – they argue that the European Union should institute a “Universal Mechanism” in order to provide individuals with a European Union passport: “we beg the Commission to delineate a method by which all Europeans of good standing may be granted a signal & permanent instrument of their status and of their right to free movement through the Union by way of a unified document of laissez-passer as permitted by Article (4) of Council Regulation 1417/2013, or by another method”.
Although the information on the Initiative on the Commission’s website and the accompanying press release do not explicitly link the putative Free Movement Mechanism to Brexit, it seems clear that such a competence for the European Union to directly issue EU passports would address the loss of rights that will be attendant to UK nationals losing the status of EU citizenship provided to them through nationality of a Member State once the United Kingdom has withdrawn in accordance with Article 50 TEU. Continue reading
By Laurens Ankersmit
This blog post summarises my contribution to the Brexit & Environment roundtable organised by the British Academy & EUrefEnv on 30 January 2017. It was published before on the blog The EU Referendum and the UK Environment: an expert review.
The UK government has announced that it will pursue a “bold and ambitious Free Trade Agreement” with the EU. The EU, no stranger to negotiating such agreements, typically includes in its FTAs a chapter dedicated to sustainable development. From the start, it should be clear that these chapters come nowhere near the protection offered by current EU environmental legislation. That said, these chapters may present some opportunities. This contribution seeks to explain the EU’s approach to environmental protection in its FTAs and identifies four key options for a potential future environmental chapter in a UK-EU FTA. Continue reading
By Darren Harvey
During her speech at the Conservative Party conference on Sunday, Prime Minister Theresa May stated that the UK would be notifying the European Council of its intention to withdraw from the EU in accordance with Article 50(1) TEU by the end of March 2017 at the latest.
Earlier that day, during an interview on the BBC with Andrew Marr, the Prime Minister was asked what will happen immediately after the notification to leave the EU has been made.
The Prime Minister responded:
“Well, it’s for the European Union, the remaining members of the EU have to decide what the process of negotiation is. I hope, and I’ll be saying to them, that now that they know what our timing is going to be, it’s not an exact date but they know it’ll be in the first quarter of next year, that we’ll be able to have some preparatory work, so that once the trigger comes we have a smoother process of negotiation.”
Shortly after this announcement, European Council President Donald Tusk took to Twitter, stating that once Article 50 had been triggered, the remaining 27 EU Member States would “engage to safeguard [their] interests” – thus suggesting that no preliminary negotiations shall be conducted prior to such notification.
This exchange raises a fundamental question about the Article 50 TEU withdrawal process that has not yet been fully considered; namely, what role will the European Council play in this process? Continue reading
By Hugo Flavier and Sébastien Platon
There seems to be a common assumption (see, among many others, here 3.6, here or here at 14:00) that there is a distinction between two kinds of « post-Brexit agreements », i.e. the withdrawal agreement (the divorce settlement) and the agreement regarding the future relationship between the United Kingdom (UK) and the European Union (EU). However, this distinction is, in fact, not very clear. It raises, in particular, several questions related to the legal basis and the nature (exclusive or not) of the withdrawal agreement. This contribution aims to clarify the distinction between these two agreements and identify the legal difficulties arising from their articulation. It will be argued that, due to some legal uncertainties, the negotiators of these agreements should be careful of their respective contents. Continue reading
By Christopher Harding
One of the most worrying aspects of the recent campaigning in the UK ahead of the referendum on UK membership of the EU, and the subsequent outcome of the referendum, was the opportunity provided to express more openly and forcibly feelings which appeared to be Eurosceptic or even more deeply Europhobic or xenophobic. On the one hand, public opinion in the UK has long been considered insular and Eurosceptic, but the referendum seemed to trigger the more open and confident expression of xenophobic views and suggests a polarisation of opinion on Britain’s international and European roles. On the other hand, Britain also has a reputation as a welcoming and tolerant society in its general attitude towards those from other countries. This contribution is a reflection on the reality of tolerance and intolerance in contemporary British society and how recent events in the UK fit into the wider European legal and cultural landscape of human mobility across frontiers. Continue reading
By Gareth Davies
Of course, it wasn’t all about immigration. But that claimed flood of Eastern Europeans was certainly at the heart of the leave campaign, and, unusually for an immigration debate, it was their right to work in the UK that was the political issue: there were too many of them, they were pushing down wages, they were keeping the low-skilled native out of work, they were costing the government a fortune in in-work benefits, they were making towns and villages unrecognisable and alienating the more established inhabitants.
Whether or not they were true, a lot of these claims seemed to be shared by both sides. Cameron didn’t so much deny them, as offer counter-claims (but they do add to the economy) and promises of change (if you vote remain, we’ll have a new deal and be able to do something about it!).
So the question is this: if the government thought that free movement of workers was causing such terrible problems, why didn’t it impose restrictions years ago when the post-Enlargement flood was at its high point and the issue first became prominent? Continue reading
By Gareth Davies
If the UK withdraws from the EU, then its citizens will cease to be citizens of the Union. That much is simple – Article 20 TFEU doesn’t leave any doubt that Union citizens are those who are citizens of the Member States.
Still, while that provision was once thought to make Union citizenship dependent on national citizenship, in Rottmann the Court turned it neatly around, showing how it made national citizenship equally dependent on EU law. In that case a German citizen was faced with threatened denaturalisation, which would be likely to leave him stateless. He argued that the denaturalisation, because it also deprived him of his Union citizenship, was an interference with his EU law rights, and so should be constrained by EU law.
He won on the principle, although he probably lost on the facts: the Court said that indeed, a national measure which deprives a Union citizen of their Union citizenship clearly falls within the scope of EU law, and is therefore subject to judicial review in the light of EU law rules and principles. However, it went on to say that such a measure is not per se prohibited. It must merely be proportionate. Denaturalising fraudsters probably is, in most circumstances. Continue reading
By Oliver Garner
On 23 June 2016, the population of the United Kingdom voted “leave” on the referendum question of whether the United Kingdom should leave or remain within the European Union. The consequences of this vote could be that the government of the Member State triggers Article 50 of the Treaty on European Union; this will start the process of the United Kingdom becoming the first Member State to withdraw from the European Union. This seismic event poses a new challenge to our understanding of European integration as a progressive process of ever closer union. Instead, fragmentation in the scope of integration could now occur through the rights created by European Union law no longer being enforceable in the territory of the United Kingdom, and no longer being applicable to United Kingdom citizens within the territory of the European Union.
Much has already been written in the months preceding the referendum regarding the process of the withdrawal negotiations following the triggering of Article 50. In contrast, this particular post will focus on whether the conditions for withdrawal have in fact been fulfilled, and therefore whether the United Kingdom is indeed bound to withdraw from the European Union. The result has triggered outrage from the 48% of the population who voted to remain, with calls for a second referendum, suggestions that the House of Commons could ignore the result, and a promise by the leader of the Liberal Democrats that the party would run on a platform to remain within the Union in any future general election. Despite the exercise in direct democracy, the answer of whether the United Kingdom must now withdraw is not clear from the country’s constitution because there is no precedent for the withdrawal from a multilateral treaty regime which creates directly effective legal rights for citizens. Continue reading
By Rebecca Zahn
The British referendum on the country’s continued membership of the EU has dominated the political and media landscape both in the UK and abroad for the last few months. There has been a plethora of academic commentary on the possible consequences of a British exit (‘Brexit’). On 23 June, based on a turnout of 72%, 52% of the electorate voted for Leave, while 48% supported Remain. This narrow majority disguises dramatic differences between different regions: Scotland, Northern Ireland and large parts of London voted to Remain whereas substantial sections of Wales and most of England voted to Leave.
In the run-up to referendum day, workers’ rights were invoked repeatedly by both sides of the campaign as either a reason to back or oppose Brexit. Leave campaigners, such as Patrick Minford, Professor of Economics at Cardiff Business School, argued that the UK needed to reset its relationship with the EU to ‘jettison excessive protection and over-regulation, notably in the labour market’. Domestic employment laws originating from the EU legislature, such as the much vilified Working Time Directive, have often been described as a burden on business, inflexible, uncompetitive and inefficient. On the other hand, Remain campaigners such as Frances O’Grady, General Secretary of the British Trades Union Congress (TUC), warned repeatedly that ‘working people have a huge stake in the referendum because workers’ rights are on the line’ and the link between the UK’s membership of the EU and better protection of workers’ rights featured heavily in campaign material opposing Brexit. Continue reading
By the editors
The British people voted by a majority of just over million people to leave the EU. Some have hailed this unprecedented decision as a return to sovereignty and a reassertion of British prominence on the global stage. Others mourn the outcome, believing it to represent a lurch towards splendid isolation and irrelevance. The vote laid bare a number of hard truths for both sides. While the close margin was largely anticipated, a negative and divisive campaign has meant that there is little common ground on which both the Remain and Leave camps can build. The results also exposed the extent of the inter-generational divide within the UK. Young voters chose by a large majority to remain while older voters chose to leave. This has led to the obvious recrimination that having reaped the benefits of EU membership for decades, older voters are depriving younger generations of these opportunities and deepening existing inequalities. The EU may, however, take some hope from this vote of confidence from the British youth.
Beyond the political, economic and social implications of the result within the UK and for the EU, the vote will have significant legal consequences. In the coming months, we will attempt to identify the legal questions that Brexit will entail. A few spring to mind: Is the UK bound to invoke the Article 50 procedure? (The political establishment in the UK appear to think not.) What happens to the international (trade) agreements concluded jointly by the EU and the UK? How will the border between Northern Ireland – which voted to Remain but will become an external border of the EU – and the Republic of Ireland be policed and what impact will this have on the Good Friday Peace Agreement? What – if any – immediate implications will this have for British MEPs, the CJEU, Commission officials, for the Council and – of course – for the British Presidency of the Council in 2017? Will Assange no longer have to fear for extradition to Sweden? What will happen to the more than one million UK citizens living and working in Europe? And what will happen to EU citizens living and working in the UK (including, for instance, professional football players)? How will the UK’s environmental law and policy be affected, as, for instance, REACH will no longer be applicable in the UK? How will the Brexit vote affect the development of the digital single market or the future funding of scientific research?
A particularly worrying feature of the UK referendum campaign, visible in the US Presidential Elections and elsewhere – is the vilification of ‘experts’ and the willing disregard of evidence. Nevertheless, as lawyers we must continue to rely on such evidence and expertise to negotiate the legal issues this vote will raise. All contributions to this blog on these legal implications are very welcome – informed expert opinion matters.