What will happen to the EU citizenship rights of UK nationals after Brexit? A Dutch Court has caused quite a stir by making a reference to the European Court of Justice on the issue. Ronan McCrea explains why the Court of Justice should not, and probably won’t, accept it.
Quite a stir has been generated by the decision of a Dutch court to make a reference to the Court of Justice of the European Union on the issue of the EU citizenship rights of UK nationals post-Brexit.
In light of the ongoing legal hearing on the triggering of Article 50, Piet Eeckhout, Professor of EU Law at UCL, examines Article 50 from an EU law perspective. He explores what the UK’s ‘constitutional requirements’ for leaving the EU entail, noting that Parliament has a role to play in any withdrawal decision.
The litigation concerning the triggering of Art 50 TEU is under way, with hearings this week and next. It is the constitutional case of the century. The government’s skeleton argument has been published. This reveals that one of the pillars of its defence is that the decision to withdraw from the EU has already been taken. Consequently, all that is in issue is the authority to notify the EU of that decision, and to start the two-year negotiation period provided for in Art 50. That, the government’s case goes, is a decision of high policy which is rightly in the government’s hands, and not in those of parliament.
Ronan McCrea, Barrister and Senior Lecturer in Law at UCL, argues that the UK could be under the jurisidction of the European Court of Justice for longer than many Brexiteers may care to imagine. Any withdrawal agreement negotiated under Article 50 has to comply with the basic constitutional norms of the EU legal order, including fundamental rights. This could have significant implications for the UK’s negotiating position, as well as the status of EU citizens living in the UK.
Those concerned with protecting human rights have been vocal in their concern that the Brexit process will lead to a reduction in human rights protection in the UK. Indeed, part of the case presented to voters in favour of Brexit was that leaving the EU would allow the UK to be free of the duty to comply with the EU fundamental rights norms, including Charter of Fundamental Rights and the possibly expansionist interpretation of that Charter by the Court of Justice of the EU. As with so many elements of the impossibly multifaceted and tangled process of Brexit, the reality may be less clear cut. It is in fact likely that any deal concluded under Article 50 will be subject to a degree of obligation to comply with the rights contained in the Charter and the fundamental elements of EU law, and indeed, and obligation to satisfy the Court of Justice that such compliance has occurred.
In his response to the Treasury’s report on Brexit, Michael Gove argued that EU Law and the European Court of Justice are responsible for imposing undesirable laws on the British public. In this post, Piet Eeckhout, Professor of EU Law at UCL, examines to what extent Gove’s claims stand up to close scrutiny.
The Brexit debate is starting to crystallise. The Treasury’s report on the negative impact of the alternatives to full membership presents the Leave campaign with considerable difficulties. The one EU policy that has always met with broad-based approval in UK political circles is the single market. At least membership gave that purely economic benefit – “if only the EU could be confined to constructing this free internal market” has been a persistent rallying cry. For the Leave campaign now to argue that it does not matter too much whether the UK is inside the EU internal market is rather incongruous, and aims to puncture the political consensus. Not an easy thing to do.
It is therefore not surprising that Michael Gove, in his headline speech in response to the Treasury report on how “the facts of life say leave”, struggles to take issue with the report’s findings. Instead, the focus is on democratic self-government, even “independence” (as if the EU were a colonial master), and on removing the yoke of EU law and of the ECJ case law. The broad argument is that the limited negative economic effects of Brexit – if there are any – are outweighed by the return of full democratic self-government. Continue reading
Damian Chalmers, Professor of EU Law at LSE and Fellow of UK in a Changing Europe, argues that the EU will continue to be perceived as authoritarian until it reforms its relationship with national citizenship and political community. This piece is part of the UCL European Institute’s commissioning partnership with openDemocracy.
When the EU’s heads of state and government met in Laeken in 2001 to start the process that culminated in the Lisbon treaty, it was not meant to be like this. A new settlement was to be built that would not only be the byword for constitutional democracy beyond the state but that would also provide the framework within which a post-national community could live at ease with itself. Individuals were to be as comfortable being and living alongside EU citizens as they were alongside national citizens.
Fast forward nearly 15 years and migration has become a touchstone for the dissolution of that dream. The rawness of its politics has consumed the EU’s decision-making structures and seemingly overwhelmed its authority. More pervasively, migration is associated with a climate of popular mistrust of political institutions, both national and EU, in which the latter are perceived by a part of the citizenry as unresponsive and unable to deal with claim and counterclaim. The commitments of national citizens to foreigners, be these other EU citizens or non-EU nationals, has been called increasingly into question and into competition with commitments to fellow nationals. Continue reading