French campaign group Fair Deal for Expats has brought a challenge in the EU General Court to Commission President Jean-Claude Junker’s “presidential order” preventing Brexit negotiations with the UK until the UK has triggered TEU Article 50.
Mr Junker foreshadowed such an order shortly after the UK referendum result, and stated on 28 June 2016 that he had “forbidden Commissioners from holding discussions with representatives from the British government — by presidential order” and “told all the directors-general that there cannot be any prior discussions with British representatives”.
According to the Fair Deal for Expats website, the challenge is being brought under TFEU Article 263. Its grounds include that the order contravenes the principle of sincere cooperation, has no proper basis and discriminates against UK citizens (who remain EU citizens).
Prime Minister Theresa May’s confirmation last week that the Crown Dependencies of Jersey, Guernsey and the Isle of Mann will be involved in Brexit negotiations has been welcomed by senior politicians from the islands.
The Crown Dependencies of Jersey, Guernsey and the Isle of Man are not part of the UK but are self-governing possessions of the Crown (defined uniquely in each jurisdiction) with their own constitution, legislature and laws. The Crown (through the UK government) may legislate for the islands by Acts of Parliament or Order in Council and is responsible for their foreign affairs, including the making and breaking of the EU Treaties, but these powers are subject to important constitutional limitations.
Previous blog posts on “Jurisdiction and Brexit” and “Contractual proper law and Brexit” have considered the possibility that when the UK leaves the EU, questions of jurisdiction and the law applicable to contractual obligations might fall to be determined by default by rules set out in the Brussels and Rome Conventions respectively. This post considers which rules might apply to determine the law applicable to tortious claims post Brexit.
A previous blog post considered the possibility that when the UK leaves the EU, the jurisdictional rules contained in the Brussels Convention might take the place of the Recast Brussels Regulation (Regulation (EU) No 1215/2012) by default. This post considers the question of which rules might apply to determine the law applicable to contractual obligations post Brexit.
The UK is embarking on a project which will preoccupy government and public for months and years to come – the negotiation of a future trading relationship with the EU. On the UK side, access to the single market is said to be the aim of these negotiations. Prominent voices on the EU side have said that the UK cannot expect to leave the EU while retaining all its benefits. Their stated position is that the single market is indivisible, and that the UK cannot remain part of that market while denying freedom of movement of persons.
The UK might seek to maintain access to the single market through a variant on the “Norwegian option”. Norway, Iceland and Liechtenstein are outside the EU, but inside the EEA. This means that they comply with EU rules on the single market, including the free movement of persons, and on competition and state aids, and that they comply with EU “flanking policies” such as equality, consumer protection and the environment. They also make financial contributions to the EU. If the UK seeks this route, negotiations will focus on the extent to which the UK will be able to impose unilateral restrictions on immigration. There would be other issues, such as financial contributions to the EU, and accepting EU legislation carte blanche, but the issue of immigration would be a central one.
The “Norwegian” route might lead to an impasse, for political reasons, or it might not be pursued very far at all.
A different approach might come to the fore.
In a recent blog post I referred to the European Commission’s recent announcement that that Member States will be required to ratify CETA, but that CETA would have “provisional application” until that happened.
I raised the question what was meant by provisional application? As ever, Brick Court’s Professor Derrick Wyatt QC has the answer which he gave at the Brick Court Panel Discussion on “Brexit and the UK Constitution” held in a packed Inner Temple Hall on 21 July.
The UK, like all EU Member States, is a party to the 1951 Refugee Convention, which guarantees certain fundamental rights for refugees and asylum seekers. Brexit will not release the UK from its basic obligations under the Convention or under international law generally. It may, however, spell the end of the Dublin III Regulation in the UK. This post considers the possible implications of Brexit for the redistribution of asylum seekers within the EU.
Co-authored by Richard Gordon QC
In the wake of the “leave” outcome of the European Union referendum on 23 June, a key focus of interest is upon the manner in which the United Kingdom can give constitutional as well as legal effect to that outcome. Law is a necessary constituent element of our constitutional arrangements although notions of constitutionality and legality do not always dovetail.
The most likely means of giving effect to the referendum result is within the framework provided by the Treaty on European Union (TEU). Article 50 TEU provides that a member state may decide to leave “in accordance with its own constitutional requirements” (TEU Article 50 para 1). After a two-year period, unless all Member States have agreed to an extension, the State in question ceases to be a Member of the EU (TEU Article 50 para 3). If an exit agreement comes into force sooner, EU membership can potentially end before two years.
The negotiations taking place during this period and their outcomes are clearly matters of critical importance. So too is the conceptual conflict between principles of direct democracy, as manifested through the referendum, and representative democracy, of which the UK Parliament is the primary organ. This recent paper, “Using the Prerogative for Major Constitutional Change: The United Kingdom Constitution and Article 50 of the Treaty on European Union”, focuses on the most immediate issue: the “constitutional requirements” that apply in the UK to the instigation of the Article 50 process.
As David Davis, the new Secretary of State for Brexit, has observed “the EU is clumsy at negotiating free trade deals”.
That clumsiness may also apply to any trade deal the UK seeks to negotiate with the EU to replace membership.
Some commentators have suggested that the UK could replicate the trade deal the EU has negotiated with Canada, the Comprehensive Economic and Trade Agreement (“CETA”).