Editorial of March 2019

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 by Allan F. Tatham, Professor at the Faculty of Law of University CEU San Pablo


Shindler’s Wish” Fulfilled and More? The Possibilities for Re-enfranchisement of UK nationals and EU citizens in a future People’s Vote on Brexit

Introduction

In the afternoon of 25 February 2019, with just over four weeks to go before the country’s expected withdrawal from the European Union, the UK Labour Party leader, Jeremy Corbyn, finally announced his party’s support for a second referendum on the issue.[1] Having already been passed as a resolution by the Labour Party conference in autumn 2018[2] and supported by the majority of party members,[3] it no doubt took the recent resignations of MPs from the party[4] finally to persuade the widely-regarded Eurosceptic Corbyn to swallow the bitter pill for a People’s Vote (PV) on the Brexit deal, “secured” by the cabinet of Prime Minister Theresa May.[5]

However, within the furore caused by his change of heart still hanging in the air, even if (and, at this stage, it is still a very big “if”) the UK Parliament were to vote in favour of a second popular vote, several points will need to be addressed anew.
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Chronos vs. Brexit: why extending Article 50 and delaying Brexit might not be a feasible solution for the EU

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 by Tiago Cabral, Member of CEDU

1. If everything goes according to plan, the United Kingdom (UK) is currently set to leave the European Union (EU) on 29 March 2019 at 11.00 p.m. That is the date enshrined on the European Union (Withdrawal) Act 2018 and the British Government has a deal that, in theory, allows the UK to leave in the planned timeframe. Remarkably, the EU has managed to keep an extremely (and surprising) united front regarding the Brexit negotiations. It is noteworthy that the message from the Chairman of the Austrian People’s Party and current Austrian Prime-Minister Sebastian Kurz perfectly mirrors the one expressed by Jean-Claude Juncker or Donald Tusk.

2. However, in the UK nothing is going according to plan for Prime-Minister Theresa May. After the deal was announced and its contents revealed a number of ministers – both brexiters and remainers – resigned from the cabinet. Seizing the opportunity to press for a harder Brexit, Jacob Rees-Mogg, the current chairman of the “European Research Group” (a group of hard-Brexit leaning MPs) started pushing for a vote on May’s leadership of the conservative party and (in practice) premiership. Said attempted failed to get the backing of enough MPs (for now) but could find new breath if the current deal is rejected by parliament. On that note, the current deal is most likely than not to be indeed rejected. About 100 conservative MPs have already stated on record that they would vote against it, and most of the opposition parties (including the DUP that has been keeping the government afloat) promised to do the same. The vote is set to happen on 11 December.
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Brexit and the possibility of “withdrawing the withdrawal”: a hypothetical question?

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 by Alessandra Silveira, Editor

In case C-621/18, Wightman and others, pending judgment by the ECJ, the request for a preliminary ruling concerns the interpretation of Article 50 TEU. It has been made in proceedings where the opposing Scots parties are Andy Wightman and o., on the one hand, and the Secretary of State for Exiting the European Union, on the other, raising the question whether it is possible to revoke the notification of the intention of the United Kingdom of Great Britain and Northern Ireland to withdraw from the European Union. The Court of Session, Inner House, First Division (Scotland), seeks, in essence, to ascertain whether, where a Member State has notified the European Council of its intention to withdraw from the European Union in accordance with Article 50 TEU, EU law permits that Member State to unilaterally revoke its notification before the end of the period of two years referred to in that Article. If so, the referring court is uncertain as to the conditions governing such a revocation and its effects relative to that Member State remaining within the European Union.

The referring court states that, under Section 13 of the EU (Withdrawal) Act 2018, the withdrawal agreement which might be concluded between the United Kingdom and the Union under Article 50(2) TEU, setting out the arrangements for that withdrawal, may be ratified only if that agreement and the framework for the future relationship of the United Kingdom and the European Union has been approved by the Parliament of the United Kingdom. The referring court states that, where the withdrawal agreement is not approved by that Parliament, and if no other proposal is made, the departure of the United Kingdom from the Union will nonetheless take effect as from 29 March 2019. The referring court adds that it is uncertain whether it is possible to revoke the notification unilaterally and to remain within the European Union. That court also states that an answer from the ECJ will clarify the options open to the parliamentarians when they vote on those matters.
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The right to withdraw the notification to leave the European Union under Article 50 TEU: can we still save the marriage?

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by Mariana Alvim, PhD candidate at University of Lisbon

The 29 March 2017 will be always recalled as the date the United Kingdom has served divorce papers on the European Union, following a referendum that took place on the 23 June 2016 where the majority of the British people decided to leave the EU.

The EU institutions and the Member States have limited instruments at their disposal to persuade other Member State to remain a member of the Union against their will; therefore if exit cannot be prevented at least it can be regulated.

The decision to depart is always taken in accordance with the Member State’s domestic law but once Article 50 TEU is triggered the law of the European Union governs the withdrawal process and the departure itself.

And despite its rapid rise to fame in the result of the British referendum, this sparsely worded Treaty provision still raises more questions that it answers.

It is important to underline that Article 50 TEU imposes substantive and procedural conditions on the withdrawing Member State. But once it has given notice under Article 50(1) TEU, all that the withdrawing Member State is apparently required to do, before the Treaties cease to apply, is to wait out the two-year period stipulated in Article 50(2) TEU.

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Brexit, The Supreme Court (UK) and the principle of loyalty: on the question of irrevocability of a withdrawal notice

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by Alessandra Silveira, Editor

Article 50, TEU is silent on several issues concerning the withdrawal of a Member State from the European Union. Such article establishes that the Member State shall notify the European Council of its withdrawal intention in accordance with its own constitutional requirements. But it does not provide for, for instance, about the hypothesis of revoking the notification of the withdrawal intention, perhaps – before the certainty of revocability – to prevent the Member States of being tempted to influence the destiny of the EU through a false threat of exit. Therefore the doubts raised by article 50, TEU will have to be solved in the light of the principles of the EU law, in special the principle of loyalty [Article 4(3), TEU]. According to this principle of friendly conduct, inherent to all known federative systems, the EU and the Member States respect and assist each other mutually in the fulfilment of the missions resulting from the Treaties.

In 24 January 2017, The Supreme Court issued its expected ruling on whether a notice withdrawing the UK from the EU Treaties can, under the UK’s constitutional arrangements, lawfully be given by Government ministers without prior authorisation by an Act of Parliament.[i] Probably to justify the absence of a reference for a preliminary ruling on the question of irrevocability of a withdrawal notice pursuant to Article 50 TEU, The Supreme Court  highlights that UK’s constitutional requirements are a matter of domestic law should be determined by UK judges. Moreover, The Supreme Court asserted that the issues in those appeals have nothing to do with political issues such as the merits of the decision to withdraw, the timetable and terms of so doing, or the details of any future relationship between the UK and the EU.

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R (Miller) v The Secretary of State for Exiting the European Union [2016] EWHC 2768 (Admin) : Realpolitik and the Revocation of an Article 50 TEU Notification to Withdraw

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by John Cotter, Senior Lecturer at University of Wolverhampton Law School

The opening lines of a judgment – in common law jurisdictions, at least – can very often be revealing of a court’s concerns. The first five paragraphs of the collegiate High Court judgment (Lord Thomas CJ, Sir Terence Etherton MR and Sales LJ) in Miller indicate very clearly the judges’ worry that their judgment would be misunderstood by sections of the media and the wider public. This judgment did not have “any bearing on the question of the merits or demerits of a withdrawal of the [UK] from the [EU]”, the Court stated. Rather, the question before the Court was a narrow constitutional issue, and a purely legal matter: whether the government could use Royal prerogative powers to give notification of withdrawal from the EU pursuant to Article 50 TEU or whether this was a matter for the Houses of Parliament. On this question, the High Court ruled that the notification under Article 50 TEU may not be given by means of Royal prerogative; rather, such notification is a matter for Parliament exclusively. While the conducting of international relations and the signing of and withdrawal from international treaties were powers generally to be exercised by the executive on behalf of the Crown, the High Court reasoned that where withdrawal from a treaty would result in changes to domestic law (as withdrawal from the EU would), such withdrawal could not be effected without Parliament.

The Court’s attempt to avoid misinterpretation of its role appears, however, to have fallen on deaf or wilfully closed ears, with the judges being subjected to attacks in sections of the media that were astonishing even by the standards of Britain’s rather histrionic tabloid press (one publication’s front page contained the headline “Enemies of the People” along with photographs of the three judges). To many of those advocating Brexit, the judgment was an unelected court playing politics and frustrating the will of the people (even though the European Union Referendum Act 2015 had not provided that the referendum result be binding). To the Court’s defenders, the judgment was the latest in a line of rulings in which the courts upheld the supremacy of Parliament over Royal prerogative powers. It is certainly the case that the High Court judgment, if upheld by the Supreme Court (which is due to hear an appeal in early December), has the potential to make the giving of the Article 50 notification a more lengthy and complex process. It is conceivable that both Houses of Parliament could use their leverage to require the government to reveal more detail on their post-notification negotiating aims. However, as a matter of realpolitik, the judgment is unlikely prevent Article 50 being triggered: Labour, the largest opposition party in the Commons has indicated that it will not vote against a Bill to give notification under Article 50, and it is unlikely that the Lords would provoke further questions about their relevance in modern Britain by blocking Brexit.

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Brexit and the European Football Market: The Consequences for the Premier League and the British Players

by Rita de Sousa Costa, law student at UMinho
and Tiago Sérgio Cabral, law student at UMinho

The results of the referendum held in Great Britain on the 23rd of June of 2016 shall certainly change the course of history. On this day “Brexit” trumped “Bremain” by 52% against 48% with a turnout of about 72%. And while the results of the referendum are not binding it does seem that the British government plans to respect the will of the voters.

Leaving the EU will affect not only the economy but every single aspect of the lives of the British people, including sports. The British love sports, mainly football, and Britain, more precisely England has one of most competitive football leagues in the world: the Premier League. Nigel Farage a top UK politician and one of the most prominent leave supporters said in April:

What this referendum is about is taking back control of our lives, our laws and our borders”.

However, we must ask ourselves what are the consequences of “taking back our laws and borders” for the Premier League?

Farage is a supporter of Crystal Palace, whose team is composed of 32 players, and 12 of those players are not British. Manchester United, the winner of the FA Cup, regularly plays with 7 non-British players on its line-up even if in total it has more than 50% British players on its roster. How will the Premier League survive after Brexit? Will its teams agree with Farage’s statement “outside of this single market we will be better off” (here)?
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“Out is out” (including in relation to the Mediterranean diet…). On the Article 50 of the European Union Treaty in the light of the federative principle of European loyalty

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by Professor Alessandra Silveira, Editor

Since Abraham Lincoln faced the hardest constitutional crisis of the USA (War of Secession, 1861-1865) the modern legal theory of federative systems had taken for granted that the hypothesis of secession was repelled. And then the Canadian Supreme Court reframed the data. In the country, in 1995, a referendum was called on the unilateral declaration of secession of Québec. The proposal of separation was reject by a short difference – 50,58% of the votes in a turnout of 94%. Following the referendum the federal government appealed to the Supreme Court to know if a unilateral secession, addressed in a popular consultation not approved by the remaining States, would violate the Constitution. The Supreme Court ruled that a unilateral secession with those features would infringe the Constitution. However, if in a different referendum, when answering a “clear question”, the “clear majority” of the Québécoise casted an unequivocal will of not integrating Canada anymore, then the remaining States and the federal government would be bonded to negotiate with Québec the conditions for its withdrawal because unwritten constitutional principles determined it (Reference re Secession of Quebec, [1998] 2 S.C.R. 217). In the aftermath the federal government passed in the Canadian Parliament “clear” rules tending to regulate and calculate the “price” of withdrawal, especially to safeguard the legitimate interest of the remaining States and their population – as a result, Québec still integrates the federation. Punch line: in a federative system there are neither free lunches nor free exits.

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