The Road to Transition…Paved with Good Intentions?

Rotterdam_Bulk_terminalAs British Brexit negotiators are hoping to secure an agreement on the transition period at the European Council on 22-24 March, Sionaidh Douglas-Scott explores what they should keep in mind, and discusses sticking points to prepare for.

Both the EU and UK appear to accept that a transition period (or as the UK Government prefers it – ‘implementation period’) will be necessary to effect Brexit, as it is unlikely that agreement on the UK’s future relationship with the EU will be reached and implemented before 29 March 2019. Continue reading

Brexit EU Citizenship Rights of UK Nationals and the Court of Justice

Screenshot 2018-02-09 09.51.52What 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.

Continue reading

The UK decision to withdraw from the EU: parliament or government?

high court.jpgIn 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.

Continue reading

Can a Brexit Deal Provide a Clean Break with the Court of Justice and EU Fundamental Rights Norms?

CJEU.jpgRonan 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.

Continue reading

Facts of Life: How Michael Gove misrepresents the effects of EU law and the ECJ case law

justice statueIn 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