Tag: withdrawal agreement

Time for a Little More Time? Post-Brexit Trade Negotiations and the Current Pandemic

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 by Allan F. Tatham, Professor at Facultad de Derecho, Universidad San Pablo CEU

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Background

In the present context of the COVID-19 pandemic, with its impact on the health, economic and social systems of states around the world, it appears somewhat trivial in comparison for the UK and the EU to be still pursuing agreement in the post-Brexit negotiations. On 18 March, the Union published its draft legal agreement for the future EU-UK partnership, in accordance with its 2020 Negotiating Directives and the 2019 Political Declaration of the parties. And while, by then, the UK had not presented a comparable document, its approach to the negotiations had been published on 27 February. From these sources, it would be fair to draw the conclusion that there remain many outstanding issues that need to be discussed and resolved. Among them the maintenance of a “level-playing field” to ensure fair competition and protection of standards; fisheries; financial services; security and police matters; and the role of the Court of Justice of the European Union or another mechanism for resolving disputes under a Comprehensive Free Trade  Agreement (CFTA). Even the negotiating styles are different, with the UK seeming to display a sort of “pick-and-mix” approach – essentially using as precedents different provisions selected from various agreements (that the EU has already concluded with other third countries), collecting them together and then arguing for their inclusion in the CFTA.

Given these real challenges, the onset of the pandemic appeared initially to have caused only ripples on the surface of the negotiations. In fact, the UK desired to portray a “business-as-usual” approach to the negotiations and so to “carry on regardless” with them through video conferencing. Moreover, shortly before he himself was quarantined and hospitalised for the virus, the British Prime Minister Boris Johnson in his daily coronavirus press briefings was continuing to repeat the mantra of sticking to the 31 December deadline. Only with Michel Barnier’s diagnosis with the virus, the need for more officials on both teams to self-isolate and the recognised limitations to video-conferencing, were the negotiations suspended at the end of March 2020.
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Editorial of March 2020

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by Pedro Madeira Froufe, Editor
▪


An “idea of Europe” – on George Steiner and Brexit

The result of the 2016 UK referendum (Brexit) undoubtedly posed a series of questions and triggered a set of concerns that, in a way, were already underlying European collective thinking – rectius, underlined and involved the dynamics of European integration.

Following the Brexit referendum, many considered (or even predicted) the progressive disintegration of the Union, a contagious effect on the rest of integrated Europe, especially in the face of the emergence of outbreaks of nationalist populism in countries such as Italy, Poland, Hungary, Malta, Spain, as well as the strengthening of these political currents in other Member States – with the already traditional Front National in France, besides Holland and Germany.

However, instead of these forecasts, during the entire negotiation period of the exit agreement, until January 31, 2020, the contagion effect occurred in the opposite direction to what these currents (which bet on the breakdown) supposed. There was a political reinforcement of the Member States’ common position to renew the will to maintain and deepen the integration process. In other words, a position with a single voice from all the remaining 27 Member States, so that, in that plan, Brexit represented – despite everything and until now – a factor of strengthening the union around the need, commonly felt, to maintain the “European dream” (expression by George Steiner, in a posthumous interview, published in the newspaper El País, on February 7, 2020). So, being naturally a disastrous mishap, Brexit can also be a positive event. There are thorns that oblige us, at times, to pay more attention – treating it with more care – to the beauty of the rose (because “there are no roses without thorns”!).
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Editorial of February 2020

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by Pedro Madeira Froufe, Editor
Tiago Cabral, master in EU Law - UMinho
▪


You have been my friend. That in itself is a tremendous thing[i]

1. Throughout these last few weeks, the final steps necessary to complete the Brexit process were taken, in Brussels. On the 24th January, the President of the European Commission, Ursula von der Leyen, and the President of the European Council, Charles Michel, signed the historic “Brexit deal”. To make it fully official, two steps remained: a) approval by the European Parliament and; b) approval by a qualified majority in the Council. Regarding the European Parliament, indeed, this Institution gave its stamp to the deal by a fairly large margin of 621 votes in favour, 49 against and 13 abstentions, on the 29th of January. Lastly, on the 30th of January, the Council adopted, by written procedure, the decision necessary to conclude the withdrawal agreement.

2. We had plenty of delays and attempts to take Brexit over the line but this time, according to all signs, it will really happen. A quick search through our archives will show the Reader that we had plenty of opportunities to write about Brexit (and will probably keep writing during the transition period and beyond), but this editorial is, in itself, a moment of closure.
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Editorial of November 2019

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 by Allan F. Tatham, Professor at Facultad de Derecho, Universidad San Pablo CEU

▪


“Does Britain have a great future behind it?”: The stress of Brexit on a (Dis)United Kingdom

Introduction

Whatever the results of the British general election on 12 December 2019, Brexit will have major implications for the populations and governance arrangements of the four nations – England, Scotland, Wales and Northern Ireland – and their continuing membership of the United Kingdom (UK). The present author has already discussed the constitutional implications of a vote to leave the European Union (EU).[i] This discussion instead will briefly highlight how the results of that referendum and the ensuing three years or so have increasingly led two of the smaller “devolved” nations (England makes up over 85% of the UK’s total population of some 66.5 million people) to reassess their position in the UK.

The Brexit referendum itself of June 2016 revealed both inter-nation and intra-nation division. According to the figures,[ii] majorities in England and Wales voted to leave, while most voters in Scotland and Northern Ireland (as well as Gibraltar) opted for remain. Yet even these results are more nuanced than first appear: London also voted to remain as did some other cities (e.g., Bristol, Leeds, Liverpool, Manchester, Newcastle) though by differing margins. Moreover recent research[iii] has shown that in Wales, areas with predominantly Welsh-speakers had voted to remain (as did Cardiff) while many of the 21% English-born voters had voted leave. The picture in Northern Ireland was no less complex: there, the nationalist community voted overwhelmingly for remain, while the unionist community voted largely (though much less decisively) for leave.

Northern Ireland

Of the four nations, this is the one most directly affected by Brexit since it will be the only part of the UK with an external border with the EU (Ireland). It is also the only devolved nation, according to the 1998 Good Friday/Belfast Peace Agreement, that has in effect the legal right to secede from the UK, once a referendum has been held. In fact the most intractable issue in the Brexit negotiations has proved to be finding a solution to the Northern Irish trilemma: fulfilling the UK Government’s promise to leave the EU customs union and single market; to preserve British “territorial integrity”; and to continue its commitment to the peace agreement. However, leaving the customs union and single market would have meant the re-imposition a hard (or physical) border between the North and the South of the island of Ireland, entailing checks and customs duties: this represented for all parties a direct threat to the peace agreements. A way forward out of this trilemma was needed in order to avoid (or at least minimise) the immense social and economic dislocation implicit in a no-deal Brexit; this presented the negotiators with an immense task.
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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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Brexit and the possibility of “withdrawing the withdrawal”: a hypothetical question?

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 by Alessandra Silveira, Editor

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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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