Brexit: Happy Marriage and Divorce

1 hét ago

“Nobody wants to speak about divorce on the wedding day”.
Abraham Lincoln


This article focuses on one of the most essential challenges for the European Union – Brexit, a process in motion since June 2016 and still shrouded in uncertainty at the present time. No one could have ever thought that the UK would leave the EU, but the referendum made it clear that the desire of the British people to regain sovereignty and take back control is favorable to being a Member State and benefitting from the Union. It is predicted that the UK will leave on Friday, March 29, 2019. However, no one knows yet how and by what conditions due to the fact that there is disharmony between the MPs and the prime minister of the UK – Theresa May – and due to the fact that there shall not be better offer by the EU than a withdrawal agreement. This article deals with the “marriage and divorce” of the UK and the European Union. Therefore, there shall be a short survey of the circumstances of the UK’s accession, the origin of the rights to withdrawal, a short summary of the reasons that lead to the UK leaving, and the last paragraph will discuss the withdrawal agreement that is currently on the table and review the possible future steps that could be taken by the “John Bull”.[i]

The Accession of the United Kingdom to the European Economic Community

In 1957, when the founding states of the European Economic Community[ii] signed the Treaty of Rome they asked Britain whether it fancied hanging out to see what might happen, Britain said thanks, but no thanks.[iii] Despite this, the British government realized that the development of the Community would affect the British role in world politics. Therefore, they joined the European Community in 1973, 16 years after it was first set up as a project to promote peace and prosperity in Europe.

However, the UK had many obstructions in joining the EEC, particularly due to two rejections. The UK had submitted its first application to join in 1961 under Conservative PM Harold Macmillan, but this application was vetoed by French President Charles de Gaulle in 1963. Consequently, the UK had made a second application, under Labour PM Harold Wilson, yet it was again blocked by de Gaulle. He claimed that Britain was not fundamentally European and more linked to America. He thought Britain would be “an American Trojan horse”.[iv] Moreover, Winston Churchill has always wanted to make it clear that the US is the most important partner of the UK and Britain would only act in conjunction with this country. Accordingly, Churchill told Charles de Gaulle one time that “every time we (British) have to decide between Europe and the open sea, it is always the open sea we shall choose”.[v] Therefore, de Gaulle has always been against the UK Accession to the EEC and in the absence of his support, the UK had no chance to be a Member State of the Community. Finally, after de Gaulle had relinquished the French presidency in 1969, the UK made a third and successful application for membership, under Conservative PM Edward Heath. The Treaty of Accession came into effect on 1 January 1973 alongside similar treaties with Denmark and Ireland.[vi] In February 1974, Wilson returned to power after the victory of the Labour Party in the British general election. He himself had sought British accession to the EEC in 1967, during his first tenure as Prime Minister. He severely criticized the compromises accepted by his successor, Edward Heath, when the Treaty of Accession was ratified in 1972. Therefore, he immediately called into question the terms for the United Kingdom’s accession to the EEC.[vii] As a consequence, on 5 June 1975, a referendum was held on whether the United Kingdom should remain part of the Community. The British people voted to stay in by 67% to 33%.

The Referendum: Leave or Remain

The UK was in the first wave of new entrants to join the original members of the European Community on 1 January 1973 (with Denmark and Ireland) — and it is set to be the first to leave on March 29, 2019, due to the referendum that was held on 23 June 2016, where on the question “Should the United Kingdom remain a member of the European Union or leave the European Union?”, almost 52% of the British people opted for “Leave” while only 48% chose “Remain”.[viii] The referendum map shows that the Scots and the Northern Irish, as well as the metropolitan areas of England, voted to stay in the EU, whereas peripheral England and Wales voted for leaving.

The reasons that lead the UK to leave are divergent. On the one hand, many people asserted that this referendum represented an imperial throwback.[ix] The UK became “just another European power” after accession and there was no possibility to be the first in the presence of France and Germany. In spite of its influence in the EU by being the driving force behind the creation of the Single Market, free trade policy and the enlargement process, the UK never fully matched the political influence of France and Germany, although it was, alongside them, one of the “big three” of Europe.[x] Therefore, the main slogan of the Leave campaign, “Take back control” had a resonance that the Remain campaign, based on economics, could not match.[xi] Moreover, the Leave campaign asserted that regaining the sovereignty of the UK was essential in order to “put in place our own policies and laws on our economy, including industry and energy”; “to improve the UK’s position as the fifth largest economy in the world by taking back control of our finances and trade deals. Britain is now in a position to dictate trade agreements with the rest of the world”; to “stop sending £350 million every week to Brussels and instead spend it on the UK priorities.”[xii] In their eyes, Brussels was bureaucratic, arrogant, wasteful, undemocratic, with a desire to control the British people in agriculture, judiciary, and government. Further, leaving the EU could solve one of the main issues – migration – by telling Europeans and Asians to pack up now and go ‘home’.[xiii] Thus, the opinion that “a better, friendlier relationship with the EU is much safer than giving Brussels more power and money every year” has emerged.[xiv]

It is remarkable that British people were not aware of the question of the referendum. Specifically, the meaning of Brexit and even the meaning of the EU. According to Google, Brits were searching the following information: “What is Brexit?", “What is the EU?”, "what happens if we stay in the EU?", the day after they voted for leaving. However, due to all the above-mentioned reasons and the unawareness of the people, the UK is leaving, but there remains a big question – how and by what terms?

The Right of Withdrawal

Just as nobody speaks about divorce on the wedding day, the European Economic Community had no desire to declare withdrawal rights since its establishment, nor has the European Union thought about it till the entry into force of the Treaty of Lisbon in 2009. One might notice that the conditions of withdrawal are enshrined in international law, particularly under Article 62 of the Vienna Convention that says “a state can withdraw from a treaty only, if there is a fundamental change of circumstances, which have occurred in relation to those existing at the time of the conclusion of that treaty”.[xv] Its Article 59(1)(a) also says that “A treaty shall be considered as terminated if all the parties to it conclude a later treaty relating to the same subject-matter and [it] appears from the later treaty or is otherwise established that the parties intended that the matter should be governed by that treaty.” However, since 2009 the procedures of withdrawal from the EU have been governed by a separate EU law provision which specified the generally applicable rules of international law. According to Article 50 of the Treaty on European Union (TEU), “any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.”[xvi] State sovereignty in this context is very broad because of the rule which does not require the state to give any formal reason for its decision. It is satisfactory that the state notifies the European Council of its intention to leave the Union. As a consequence, ‘the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union’.[xvii] As it is known, no country has left the EU before.[xviii] The UK will be the first country to leave by the terms offered: either through a well-negotiated withdrawal agreement or without any deal.

The Withdrawal Agreement

The Withdrawal Agreement (WA) on the future relationship between the UK and EU was endorsed by leaders of both parties on 25 November 2018. The British government has to lay these terms before the Parliament ahead of the parliamentary debate and vote on the approval of the document which sets out the terms of the UK’s smooth and orderly exit from the European Union, somewhat like the “terms of divorce” covering an economic partnership, a security partnership, and agreements on areas of shared interests. The Majority of British lawmakers are against the deal due to various reasons. For instance, the Parliament says that the UK shall leave the Customs Union and shall be able to diverge from EU regulations, while the WA would see the UK remain in the Customs Union as a non-voting country. According to the WA, Britain will collect customs duties for the EU as they do now and allow the EU to decide their trade policy with no right to be consulted or to vote on any trade remedies it sees fit to take. This means that during the transition period, the Brits must follow all EU rules for “goods placed on the market”,[xix] a market the UK will not participate in. It is worth noting that none of the EU competences appeared in Brussels without the legitimation of the UK,[xx] but the WA promises a different reality. Moreover, the MPs also argue that they need to take back control over the British money, but the agreement provides that the UK must apply EU law on VAT, customs duties, excise and indirect taxes, and provide funds to the EU budget in accordance with the current budget plan until December 2020. This sum has been generally estimated at £39 billion. It is money for nothing.[xxi]

One of the most painful articles of the WA is Article 127, which says “Union law shall be applicable to and in the United Kingdom during the transition period,”[xxii] and Article 86, saying “The ECJ shall continue to have jurisdiction in any proceedings brought by or against the United Kingdom before the end of the transition period,”[xxiii] while MPs believe that Britain has to be an independent nation and leave the jurisdiction of the ECJ and restore the supremacy of national courts. Additionally, there is no possibility of “membership without accession” or “unfinished integration” like Switzerland or Norway, but one might note that the British case is different, because the Swiss and Norwegians are hesitating and are still before the “wedding ceremony”, whereas the British are already after the divorce. Therefore, the atmosphere in the family is different in these two situations.[xxiv]

It is not arguable that Mrs. May’s cabinet is largely ready to accept above-mentioned terms in order to secure a deal by March and provide some reassurance to businesses. Theresa May says that “Brexit means Brexit,” and she is going to deliver the will of the British people. For that, her Brexit deal needs the backing of 320 lawmakers, more than half of the 639 MPs that vote in Westminster. If no Withdrawal Agreement can be agreed upon, the UK becomes a ‘third country’—this is the ‘no deal’ scenario.[xxv] Further, no deal means uncertainty about the protection of the more than 3 million EU citizens in the UK, and over 1 million UK nationals in EU countries to continue to live, work or study as they currently do, while the WA could offer guarantees for them. Another essential topic is the Irish “hard border”. Right now, the border between the Republic of Ireland and Northern Ireland is open. If the UK leaves without the deal, everything turns upside down by establishing a “hard border” with checkpoints, border crossings and other infrastructure. These could seriously slow trade and other economic activity.[xxvi]

Despite readiness of the May’s government of the unfavorable terms of the WA for the UK, on 15 January 2019 May’s Brexit deal has been rejected by the House of Commons. It was the largest defeat for a setting government in history by 230 votes. (The deal was voted down 432 to 202 in the House of Commons). It truly shows how unpopular is the Brexit deal for MPs due to above-mentioned reasons and due to the fact that in their eyes this is not what British people voted for in the referendum. Former foreign secretary and leading Brexiteer Boris Johnson said it was a “bigger defeat that people have been expecting” – and it means the deal is now “dead”. Consequently, due to the biggest failure, not only Labour leader Jeremy Corbyn, but also many British lawmakers have tabled a vote for no confidence in the government. Therefore, all in all, we could have with this government or new one a no deal scenario, a second referendum, a general election, remaining in the EU or it is not excluded to stop “the clock of the Article 50” in order to be achieved a better deal.

*   *   *

To conclude, I would say that ending 43 years of marriage is not as easy as the Brexiters thought it would be, because the EU is more developed in all aspects, the Single Market is more effective, the role of the European Court of Justice is crucial in the European integration and in those circumstances the Brits face a hard obstacle in which no one knows exactly how to break the deadlock. As Antony Hilton argued “Brexit is not about economics, it is about the kind of country people think they want to live in and the kind of people they think they are. It is not a factual matter, it is like faith: you believe or you don’t – and that’s why the outcome is uncertain.”[xxvii] No one knows what the British people want to do. Where the UK is heading in this time of uncertainty is unclear, but what is quite clear is that the United Kingdom is set to leave the European Union at 11:00 p.m. London time on March 29, 2019. Besides the rejection of the Brexit deal, the UK is still on course to leave on 29 March, but this defeat will define the manner of the departure.


For a list of references, click HERE.

Author: Giorgi Gogokhia, European and International Business Law LLM student, University of Debrecen, Faculty of Law

[i] Typical Englishman or the English people in general.

[ii] France, Germany, Italy, Belgium, the Netherlands and Luxembourg

[iii] Henley, J. (2016) “Britain and the EU: the story of a very rocky marriage”, The Guardian, 23 June [online]. Available at: [Accessed: 11 Jan, 2019]

[iv] Jordan, P (2018) “Charles de Gaulle – the unlikely prophet of Brexit”, the Queen Mary University of London, 27 June, [online]. [Accessed: 11 Jan, 2019] Available at:

[v] Troitiño D.R., Kerikmäe T., & Chochia A. (Eds.). (2018). Brexit History, Reasoning and Perspectives. Springer, V.

[vi] Norway also applies, but it does not join, after a referendum on membership was failed

[vii] CVCE.EU, (2017) “The United Kingdom's accession to the EC”, [online]. Available at: [Accessed: 11 Jan, 2019]

[viii] Bloomberg, (2016). “EU Referendum: Final Results.” [Accessed: 12 Jan, 2019]

[ix] Jack, I. (2017) “The big white men of Brexit are a throwback to Britain’s imperial past”, The Guardian, 28 January [ 12 Jan, 2019]

[x] Hughes, K. (2016) “UK Spirals into Political Crisis after EU Vote”, Economic & political weekly, Vol. 51 (25).

[xi] Ibid. See, reference n7 above, VI.

[xii] Ibid.

[xiii] Shobha, D. (2016) “Why did Britain opt for Brexit?”, The HINDU, 12 July. [Accessed: 12 Jan, 2019]

[xiv] Ibid. reference n7. 215.

[xv] The Vienna Convention on the Law of Treaties, Article 62.

[xvi] The Treaty on European Union, Article 50.1

[xvii] Ibid, Article 50.2 Also, that agreement shall be negotiated in accordance with Article 218(3) of the TFEU.

[xviii] If we does not count Greenland, which was the part of Denmark and left the EU in 1982 (Denmark stayed).

[xix] Briefings for Brexit, (2018) “The Seven Deadly Sins in the draft Withdrawal Agreement”, available at: [Accessed: 13 Jan, 2019]

[xx] Troitiño D.R., Kerikmäe T., & Chochia, A. (Eds.). (2018). Brexit History, Reasoning and Perspectives. Springer, 104.

[xxi] Ibid, reference n21.

[xxii] Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community, as endorsed by leaders at a special meeting of the European Council on 25 November 2018, Article 127.

[xxiii] Ibid, Article 86. See also Article 87-89 about the ECJ jurisdiction.

[xxiv] Ibid, reference n22, 110.

[xxv] Meaney, A. (2018), ‘No Withdrawal Agreement? What happens next?’. The compelling economics. [Accessed: 13 Jan, 2019]

[xxvi] Hughes, K. (2016) “UK Spirals into Political Crisis after EU Vote”, Economic & political weekly, Vol. 51 (25).

[xxvii] Hilton, A. (2016) “The London Evening Standard”, the Evening Standard, 25 February.


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„That ship has sailed...?” the UK should be able to change its mind about Brexit, according to the Advocate General

1 hónap 1 hét ago

Advocate General Campos Sánchez-Bordona proposes that the European Court of Justice (ECJ) should declare that Article 50 TEU allows the unilateral revocation of the notification of the intention to withdraw from the EU. The ruling date has been set for December 10, just a day before the national Parliament’s vote on Prime Minister Theresa May’s much-maligned Brexit agreement. Regarding the issue, it seems that the United Kingdom isn't united at all at the moment...

Brief Brexit-background

Article 50 allows any EU member state to leave the bloc. It was invoked by the British government following the historic referendum on 23 June 2016, when roughly 52 percent of voters chose „leave” and 48 percent went „remain” – in Scotland and Northern Ireland, the majority of voters wanted to stay in the European Union, while the majority in England and Wales voted in favor of leaving. The UK triggered the article on 29 March 2017, starting a two-year countdown to secure a divorce deal before leaving the EU.

Since then, the whole situation has been turned upside down. A hard core of campaigners has pushed for a second referendum to overturn the result, including the former Labour Prime Minister (PM) Tony Blair.  By contrast, Brexit supporters compared the EU to the sinking „Titanic”  and Jeremy Corbyn, the aforementioned party’s leader today, – who, resisting the rerun of the vote, told the BBC in January „...that ship has sailed,” on UK remaining in EU – only a few months ago, said he did not know if he would vote „in” or „out” if given a second chance... At this point in time, the landmark 585-page agreement, which extracts Britain from the EU after more than four decades of membership, has proved politically toxic in Westminster: everyone from hardcore Brexiteers to pro-EU Brits finds aspects to dislike. Which clearly shows – keeping to the metaphor – that a lot of water has flowed under the bridge.

Old debate, new chapter

Meanwhile, a new chapter has opened in the Brexit debate: on last Tuesday (4 December), ECJ’s Advocate General advised the Court that the UK should be allowed to reverse procedure, in other words, Westminster could „stop the clock” on Brexit. The opinion, which isn’t binding, comes at a crucial moment for PM Theresa May, who’s trying to convince Parliament to back the deal she brought back from Brussels (until the vote which is due to be held on this Tuesday), but faces opposition on all sides.

Last year, pro-Remain lawyer Jolyon Maugham, along with a group of Scottish and English politicians asked a court in Scotland whether, having initiated an EU exit procedure under Article 50, a country can revoke the decision without other member states’ consent. Their hope was that, if the ECJ does rule in favor of unilateral revocation, it could pave the way for a „people's vote” on May’s Brexit deal with an option to remain. Finally, the court referred the question to the ECJ – which is already a frequent target of Brexit opponents – in October. The hearing came just two days after the UK agreed with the EU on the divorce terms at a special summit in Brussels, where European leaders warned British politicians they won’t get a better offer because there is no „Plan B”.

The Brexit ministry tried to „kill the case” and prevent it reaching the EU Court, but lost its final attempt last month to derail the case after the country’s Supreme Court refused to hear an appeal on blocking the referral to the EU judges, whose power over British law many pro-Brexit supporters want to sever. Lawyers for the Scottish and English politicians behind the case, argued that legal certainty needs to come before politics. „Undoubtedly in the current circumstances it is politically charged, but it is a question of European law,” said Gerry Facenna, who represented two English lawmakers. „Parliament has the power to decide and it is the parliament that needs to have certainty about the legal framework.”

The UK declared that the case is essentially pointless because the government has no intention of backing out of Brexit and the Court shouldn’t interfere, as Richard Keen, the UK’s lawyer underlined: „If the Court enters the field of parliamentary debate prematurely, then it does risk the accusation from one side or another that it is influencing the legislature or the executive in the determination of a highly charged political issue.” At the hearing of the case, he added that „In Greek myth, Pandora was given a large box on her wedding, which she was warned not to open... We respectfully plead that the Court should not open this box.” However, in line with the UK’s reference to Greek myth, Aidan O’Neill, the lawyer for the Scottish lawmakers, concluded by saying that „...what came out of Pandora’s box was not simply knowledge of the world’s evil, but ultimately hope, hope in and for a dangerous time.”

What Britain should know about...

The issue is so complicated because while Article 50 tells member states how to start the process of leaving the bloc, it offers no help on what to do it they change their mind. In a clear and detailed opinion, Sanchez-Bordona said that the UK (and any other member state that might follow in its footsteps) can revoke its Article 50 procedure within two years after it began and before a formal withdrawal treaty is signed. He pointed out that under Article 50, a country only declares its „intention,” not its decision, to exit. So ending the process, according to the advocate general, would be a manifestation of the withdrawing state’s sovereignty – a word especially dear to Brexiters. According to Sanchez-Bordona, a country could revoke an Article 50 notice „until such time as the withdrawal agreement is formally concluded.” He also highlighted that it was essential that Members of Parliament (MPs) knew they could stop the Brexit process if they wished.

The Advocate General rejected the arguments by the European Commission and EU governments, that revocation of Article 50 can only happen with the unanimous backing of the remaining 27 nations. This would be “incompatible” with Article 50, he said. He also rejected the UK government’s position that the case is purely hypothetical and therefore inadmissible. „The dispute is genuine, the question is not merely academic, nor premature or superfluous, but has obvious practical importance and is essential in order to resolve the dispute,” he argued. He also highlighted that „...the relevant time to dispel doubts as to whether the notification of the intention to withdraw is revocable is before, not after, Brexit has occurred and the United Kingdom is inexorably immersed in its consequences.”

But the opinion is not in favour of an absolute right of unilateral revocation. There are two conditions in particular which need to be fulfilled. The first condition is that the revocation must be made in accordance with the member state’s constitutional arrangements. This mirrors the requirement under Article 50 that the initial decision to leave must be in accordance with the member state’s constitutional arrangements.  This requirement probably means that the UK Parliament would need to pass new legislation, though there is an argument that the notification legislation may contain an implied power of revocation. If a new act is required, this would somehow have to be passed by Parliament before departure. In theory such urgent legislation is possible, but usually not in respect of a contentious matter.

The second condition is that the revocation must be in good faith. It should not be an attempt to stop and restart the clock so as to improve the departing member state’s negotiating position. Such an abuse of process would mean that the notification would be invalid. In other words, the EU can at least insist on the revocation being sincere even if they are obliged to accept an unilateral revocation. That requirement will be the most difficult for the UK to meet. As it stands there is a referendum result which provides a political mandate, and this mandate was supported by a majority of the MPs returned at the previous general election. Brexit is also the official policy of the government and it is supported by the official opposition. For revocation to be in good faith, however, would seem to mean a fundamental political shift, it would mean that Brexit was cancelled.

Opinion means only opinion?

While Sanchez-Bordona’s opinion is purely advisory, the Luxembourg-based Court usually follows such advice. „The meaning of Article 50 is an easily grasped issue on which everyone has an opinion, so this is not the sort of case in which the advocate general’s opinion is automatically followed,” said David Anderson, a lawyer at Brick Court Chambers in London. „It is the confidence with which the advocate general has expressed himself, rather than the likely persuasive effect of his opinion, that leads me to think the court is of essentially the same view,” said Anderson, who’s pleaded more than 150 cases at ECJ.

The ruling will be handled by the full court, which in this case means 25 judges. Having such a large number is very rare. University of Essex’s professor of EU law Steven Peers said this could make it harder to predict because judges aren’t used to having to confer with so many colleagues. Still, in this situation, „once a preponderant view has become evident, it may well be that the judgment will go through relatively easily,” said Anderson. The one point which the Court may want to refine could be the risk of a possible abuse of a right to revocation, said Peers. The ECJ could find „that the prospect of a member state revoking its Article 50 notification and then sending another notification to gain more negotiation time is too big a risk,” said Peers. „It will come down to whether they think the risk of unilateral revocation can be dealt with by a good faith rule, or whether they will just rule it out.”

ECJ – at the speed of light

As Koen Lenaerts, the Court’s president promised a rapid ruling at the beginning of the case, the ECJ has been „reacting, in judicial terms, at the speed of light,” according to one lawyer, to deliver a ruling on how the Brexit process could be reversed. It’s a far cry from the normal procedure at the Court, which is often criticized for taking too long. Even cases that have been given so-called fast-track status can get bogged down in procedural wrangling and translations.

The EU’s highest court sought to explain its lightning speed toward issuing Monday’s landmark ruling on whether the UK can change its mind about Brexit. In a rare step, the ECJ issued a series of tweets seeking to put the record straight after people suggested that delivering a judgment on Monday is politically motivated. As it has been mentioned before, it will come the day before Parliament votes on PM Theresa May’s highly criticized withdrawal agreement.

The so-called expedited procedureallows a national court to request that its case be treated urgently in light of the special circumstances,” the EU tribunal added. „Using this procedure reduces the deadlines for the various stages and prioritizes treatment of the case within the court.” But it’s not the first time the Court has responded quickly in a crisis: back in 2001, judges ruled in just over two months in a case on foot and mouth disease; its average time to hand down a judgment in so-called urgent preliminary cases has been between 2.2 months to 2.9 months since 2013.

Mixed reception

Remain campaigners have hailed the legal opinion, saying it greatly boosts their efforts to stop the process of exiting the EU. Chris Bryant, a Labour MP campaigning for a second EU referendum who became involved in the legal action in Luxembourg, said the advice meant “the terms of the Brexit debate have fundamentally shifted”. Bryant said it finally killed off claims by Theresa May that the UK could choose only between her widely criticised deal or no deal at all. „The real choice is now clear: a Brexit deal negotiated by the government, or staying in the EU. It is imperative that the final say on this is handed back to the public because only the people of the United Kingdom can sort this out,” he said.

But not everyone was happy about the advice to the EU’s top court. Nigel Farage, a Member of European Parliament who rigorously campaigned for Brexit, said it shows „every effort is being made on both sides of the (English) Channel to stop Brexit.” Downing Street officials downplayed the significance of the legal opinion and insisted the question remained hypothetical, since the UK government had no plans to reverse Brexit. “The position of the government has always been that it will not be revoked. That remains the case,” a spokesman said. “You should be careful on what’s happened today. It’s an opinion from the advocate general; it’s not a final verdict of the court.” UK government sources also believe the opinion strengthens May’s hand. One source said that if the European court’s position increased the chances that Brexit could be stopped, the pro-remain block would be under even greater pressure not to sabotage the PM’s deal in this week’s crucial Commons vote.

There are still three days before the Brexit summit, and officials in Brussels know a lot can happen before then. That’s why they haven’t made firm plans about Thursday’s discussion. On signing an agreement with the British PM last month, EU officials – as Theresa May as well – described the draft withdrawal treaty and accompanying political declaration on the future relationship as the deal – the only deal possible”. Despite of these facts, others – like former Italian PM, Romano Prodi and former British Foreign Minister Boris Johnson – suggested it would still be possible to find a negotiated settlement in the increasingly likely event May suffers a heavy defeat in the Commons. „What people want to hear now is not stuff about leadership elections and personalities, what they want to hear is that there a plan to get out of this mess,” leading Brexit campaigner Johnson stated, who also feels deep sense of personal responsibilityfor Brexit, and for everything that has happened.”

Difficult relationship – Europe ‘à la carte’?

It might seem that the EU would welcome the UK back with open arms if Brexit were canceled. „The door remains open,” European Commission President Jean-Claude Juncker and European Council President Donald Tusk have often said. European Commission Vice President Frans Timmermans said „much has changed” since the UK voted to leave the EU in 2016. „As far as I’m concerned, the UK is always more than welcome to stay,” he stated at the European Socialists’ congress in Lisbon on Saturday. The leaders of Germany and France, the EU’s most influential countries, have also expressed hope that the UK would stay. But whether it’s really desirable for the EU to keep the UK within the fold is another matter.

Even before Brexit was on the agenda, the UK wasn’t exactly popular in the bloc. According to a 2017 paper by Marco Fantini and Klaas Staal, the UK has been the country that has garnered the least support from other member states in the European Council, which means its policy preferences have been the least aligned with those of other member states. In recent years, it’s been by far the most outvoted country in the Council. 

Even though the level of agreement in the European Council has been generally high and the UK has only dissented in about every eighth case, it voted against the majority most frequently on budgets, foreign and security policy and international development, which are especially important areas for the EU today. What is more, the UK is the EU member state with the most opt-outs from EU agreements. It refuses to think about joining the euro or the common border area, and it’s haggled relentlessly over every EU project that required giving up even a small part of its sovereignty. 


If the ECJ endorses the Advocate General’s views on Monday, it could kickstart a fresh legal battle between UK government lawyers and remain campaigners that is expected to end in the Supreme Court early next year. The opinion means Britain has a wonderful opportunity to be readmitted to the Block – but not necessarily in their hearts...


For the list of references, click HERE.


Petra Ágnes Kanyuk, PhD Student, University of Debrecen, Faculty of Law


Source of the image used:

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„To be, or not to be [in the EU]”? News in the Polish judicial reform battle

2 hónap ago

The European Court of Justice (ECJ) ordered the Polish government to immediately halt its ongoing reform of Poland’s Supreme Court – in a move that puts further pressure on the already strained ties between Brussels and Warsaw about a month ago (on 19 October). The ECJ said that Polish authorities must suspend implementing its April 2018 “Law on the Supreme Court”: to reinstate all of the Supreme Court judges who were forced to retire under the law and to refrain from any further attempt to replace them.

Polish judicial reform 1x1

The Supreme Court legal tussle forms the latest chapter in the long-standing dispute between Poland and the EU over the recent judicial reform intended to rid the Polish judiciary of its communist legacy, improve the efficiency of the court. Some aspects of the reform provoked a wave of criticism from Poland’s opposition and the EU, with alleged rule of law violations prompting the ECJ to begin proceedings against Poland. The fight over the courts stretches back three years, when the Law and Justice party swept into power, partly on the strength of a promise to reform the courts. Firstly, it renewed the Constitutional Tribunal – which is tasked with ensuring that laws do not violate the Constitution –  next, it gave authority over the country’s prosecutors to the Ministry of Justice, and before moving on to the Supreme Court, it asserted new powers to select judges.

The recent reform changed the judicial retirement age, resulting in a wholesale remodelling of the Supreme Court’s composition. It retroactively lowered the retirement age for Supreme Court judges from 70 to 65, so that nearly 40 percent of the sitting judges could be forced into retirement, including its president, Małgorzata Gersdorf. She refused to comply, arguing the measure violates the Polish constitution, which gives her a six-year term ending in 2020 and she also criticised the government’s movements intensely. Furthermore, the law empowered the president to pack the court with new judges (the number of Supreme Court judges was increased from 93 to 120) with the help of the national judicial council.

Poland’s government claims the Law on the Supreme Court is simply part of a broader reform and reorganization of the national judiciary: „...without (judiciary) reforms, we cannot rebuild the Polish state so that it serves its citizens,” said Jarosław Kaczyński, the leader of the Eurosceptic party. However, critics have depicted it as an attempt to capture the Supreme Court – moreover, basically as a constitutional coup d’état – going against not only the Polish Constitution but also the principle of judicial independence enshrined in EU law. What is more, after an amendment, which has been designed to make it easier to name the new supreme court chief, thousands of people have staged protests across Poland. Consequently, the modifications were viewed by the European Commission and many international bodies as well. According to the Venice Commission, the law seriously jeopardizes independence of „all parts of the Polish judiciary,” in addition to this, Amnesty International said that judges in Poland are „experiencing political pressure” in connection with the judicial reforms.

Prolonged battle

The Commission has been battling Poland over rule-of-law concerns on several fronts for more than two years, with Warsaw refusing to reverse a series of legislative changes that the Commission says have undermined the independence and integrity of the country’s judicial system. It started investigating violations of the rule of law in Poland in January 2016. In July 2016, the Commission recommended remedial measures, which Poland’s government dismissed as interference in its affairs. A year later, the Commission raised additional concerns about a law empowering the justice minister to remove and appoint the presidents of ordinary courts, so it launched an infringement procedure on the grounds of its retirement provisions and their impact on the independence of the judiciary. The Commission referred this case to the ECJ in December and the case is pending before the Court.

Also in December 2017, due to a lack of progress through the Rule of Law Framework, the Commission activated – for the first time in the Block’s history – the Article 7(1) procedure against Poland over changes to the judicial system, beginning a process that theoretically could lead to Poland losing its voting rights in the Council (in reality, the procedure has no chance of total success because Poland’s allies have pledged to block it). „Over a period of two years, the Polish authorities have adopted more than 13 laws affecting the entire structure of the justice system in Poland, impacting the Constitutional Tribunal, Supreme Court, ordinary courts, National Council for the Judiciary, prosecution service and National School of Judiciary” the Commission wrote in background material explaining its decision. „The common pattern is that the executive and legislative branches have been systematically enabled to politically interfere in the composition, powers, administration and functioning of the judicial branch.”

According to the lack of progress on this issue in the Rule of Law dialogue with Poland – Article 7 procedure was proving ineffective – the Commission sent a Letter of Formal Notice to the Polish authorities in July 2018 concerning the Law on the Supreme Court, and followed this with a Reasoned Opinion in August. The response of the Polish authorities on both occasions has failed to alleviate the Commission's legal concerns. As the Commission stated, „...the implementation of the contested retirement regime for Supreme Court judges in Poland is being accelerated and is creating a risk of serious and irreparable damage to judicial independence in Poland, and therefore of the EU legal order. The independence of national courts and tribunals is essential for the functioning of judicial cooperation between EU Member States, and particularly for the preliminary ruling mechanism under Article 267 TFEU.”

Five of the main political groups in the European Parliament also urged the Commission in a joint letter to open infringement proceedings against Poland and to take it to the ECJ to stop planned judicial reforms. Many senior political figures in Poland, including Nobel Peace Prize winner and former leader of the Solidarity movement Lech Walesa, have appealed to the Commission in this question as well. „In reforming the judiciary you still need to respect the independence of the judiciary,” Commission vice-president Frans Timmermans said, who has accused Warsaw of breaking EU obligations. „If you believe that through putting the judiciary under political control you can make it a better judiciary you are wrong and you are violating your own obligations under European treaties,” he said. „That is the core element of our discussion with the Polish government.” 

In the meantime, the Polish National Judicial Council (KRS) was suspended (stripped of its voting rights and excluded from participation) from the European Network of Councils for the Judiciary (ENCJ) after a fact-finding trip by the organization, which unites EU countries’ judicial systems. „The extreme circumstances of this particular case have led to the decision just taken,” said the ENCJ, adding that „member states are free to organise their judicial systems in a way that they see fit, but there are some minimum standards that have to be complied with.

The latest step

The Commission has therefore moved to the next stage of the infringement procedure in September, deciding to refer the case to the ECJ. With its referral, the Commission has also decided to ask the Court to order interim measures, with retroactive effect – freezing all actions by the government and turning back the clock to the situation before the new law entered into force this April. Finally, the Commission has decided to request an expedited procedure at the Court, to obtain a final judgment as soon as possible. The Commission added that this infringement procedure does not stop the ongoing rule of law dialogue with Poland, which is still the Commission's preferred channel for resolving the systemic threat to the rule of law in Poland.

It’s the second time since last year that the Commission has asked the EU’s top court to intervene. In 2017, it won an order forcing Poland to stop increased logging in the Bialowieza Forest, one of Europe’s last remaining primeval environments. Polish authorities initially resisted the interim decision by the Court to impose a ban on logging in the protected forest but they finally obeyed the order when the court ruled definitively that logging there was in breach of EU laws.

In this regard, we should mention that the ECJ has already dealt with the growing disquiet about the state of Poland’s courts as well. In July 2018 it responded to a query from an Irish court on the independence of the Polish judicial system by saying foreign courts have to assess whether suspects face the risk of an unfair trial if they are extradited to Poland (in other words, Ireland can refuse to hand over an alleged drug dealer to Poland if its judiciary determines he may not receive a fair trial there).

The Polish Supreme Court has also asked the European Court of Justice to rule on the new law. The court suspended the retirement age provisions and sent five questions to the ECJ on whether the retirement law is in line with the EU’s rules. The decision means that steps to impose the new rules should be suspended „until the issues presented in the questions are resolved,” court spokesman Judge Michał Laskowski told reporters in Warsaw. That could take months. Poland’s President Andrzej Sebastian Duda’s office said that the Supreme Court acted improperly and its decision „will have no consequences for the president or any other body.”

The ECJ granted the Commission’s request for an injunction, noting that suspending application of the Law on the Supreme Court was urgent because the government was in the process of carrying out a „profound and immediate change in the composition of the Supreme Court” that might irreparably damage the fundamental right to a fair trial before an independent court or tribunal. This move was only part of an ongoing process. The ECJ gave Polish authorities a month to explain how they will comply with its order, which they may use to press ahead with their reform. The Commission could then request that the ECJ impose penalty payments on the Polish government for noncompliance. The interim order does not tackle the issue of the new judges appointed to the Supreme Court under the disputed law, although its final decision may very likely address this question.

Scales of reactions

The ruling landed like a bombshell in Warsaw, Prime Minister Mateusz Morawiecki said: „Certainly after an exacting analysis we will respond.” The country’s justice ministry also didn’t immediately respond to questions. On the contrary, Malgorzata Gersdorf welcomed the decision by the Court: „Personally I’m pleased that someone has taken our case into account,” she said. „I am only disappointed that the government of my country—my homeland—did not do this earlier and that we had to go to the European Court.”

It wasn’t clear whether the government would obey the ECJ order, as in recent months some Polish ministers have said that ECJ rulings in the case won’t have to be obeyed, while others have sent a more conciliatory message: in August, Justice Minister and Prosecutor General Zbigniew Ziobro filed the motion asking judges of the Polish Constitutional Court to determine the extent of the ECJ’s legal powers over the Polish judicial system. [The motion asked whether Article 267 of the Treaty on the Functioning of the European Union (TFEU) allowing the ECJ to give preliminary rulings, is consistent with Poland’s constitution and, another point, of concern was the legality of the judicial question that Polish judges issued to the ECJ.] Minister of Foreign Affairs Jacek Czaputowicz issued a letter to the Constitutional Tribunal in which he expressed his doubt over the previous motion by the Justice Minister. His position is in not binding for the Tribunal, however, it signals a clear division within the government over how the dispute with the ECJ should be approached. 

Nevertheless, the head of the ECJ, Koen Lenaerts, responding to reports that Poland was delaying implementation of the ECJ’s decision to suspend the implementation of the Supreme Court Law, stated that EU law takes precedence over any provisions of national law and shall be respected as a top priority. He stressed that ECJ is the core of the EU’s judicial system and every EU member state has to abide by its decisions at the European level as well as at the national one. „It’s like ‘to be, or not to be [in the EU]’. A country which cannot comply with the European Court of Justice’s judgements is already on the way to undergoing a process similar to Brexit,” the ECJ head said, adding that all EU member states agreed to adhere to the same European values and regulations. (These remarks are likely to raise many eyebrows in government circles and beyond in Poland, as comparing this dispute to Brexit is particularly controversial, but highlights the ECJ’s view of the topic.)

After all – as days passed and local government elections came as well – Marcin Warchoł, the Deputy Minister of Justice insisted that the ECJ ruling will be respected, even though the Polish government disagrees with it and that Poland will be contesting the ECJ suspension. In order to ensure compliance with the ECJ ruling, the justice ministry is preparing an amendment to the Supreme Court Law for the President to be able to reinstate the 23 judges deemed to have been retired.

The Polish foreign ministry also issued a statement after a hearing of parties on 16 November in the case: „Poland upheld its position previously communicated to the Court of Justice. The Polish government agent emphasised that the Commission had failed to substantiate any of the three requirements for applying interim relief under the case law of the Court of Justice... the Commission had failed to show that the application of such far-reaching measures is justified, prima facie, in fact and in law and that they are urgent in so far as, to avoid serious and irreparable damage, they must be made and produce their effects before a final decision is reached...the Commission incorrectly weighed up the interests of the parties by failing to allow for the need to ensure the uninterrupted functioning of the Supreme Court, independence of its Judges, and legal certainty of the parties to proceedings before this Court.” The Polish agent specifically stressed the failure to meet the urgency requirement for applying interim relief, which should by its nature only secure the possibility of enforcing a future judgement instead of reversing effects produced by legislation at issue whose compliance with EU law has not been yet determined.

Despite of this, during the Future of Transatlantic Relations (FOTAR) international conference held in Hamburg on 17 November, the Prime Minister stressed that: „What we needed was to reach a compromise and then have a dialogue, which is happening now.” He also said that within a few days Poland would present and propose „certain changes” on the Supreme Court Law to the Commission. „We hope that the EC will be satisfied,” he stated. 

In conclusion, one thing is certain: this battle is far from over – and we eagerly await together for the next step.


For the list of references, click HERE.


Petra Agnes Kanyuk, PhD Student, University of Debrecen, Faculty of Law



Source of the image used:

Kategória: European UnionHírgyűjtemény: Közjogi Albizottság: Korábbi hírek: Felnőttképzés: Közrendészet és magánrendészet: Közigazgatási bíráskodás: Közérdek: Helyi Önkormányzatok: Land grabbing: PPP: Energiakornyezet: Tudományos folyóirat: Foreign Investment and International : 

„Whatever it Takes to Preserve the Euro...?” Advocate General backs ECB’s bond-buying programme

3 hónap 2 hét ago

The European Central Bank’s (ECB) bond-buying programme is legal and within the powers of the central bank, the advocate general of the European Court of Justice (ECJ) said on Thursday (4 October), amid a challenge in Germany to the bloc’s quantitative easing (QE) programme.

It is the second time the EU’s highest court – more precisely, its senior official in this case – has said the ECB’s extraordinary monetary policy measures, under which it has announced or adopted various ‘non-standard’ measures in response to the euro area sovereign debt crisis, are within the bounds of EU law. In 2015, the Court ruled in the Gauweiler Case that the ECB’s Outright Monetary Transactions (OMT) programme – which has been announced in September 2012 but never yet been used – did not break EU treaty law. The idea is that the ECB would buy government bonds in the secondary market, from a party that has bought these bonds first from a Member State, rather than from a Member State directly, since the Treaty prohibits the ECB from acquiring government bonds this way – as this would amount to monetary financing or becoming a direct lender of last resort to a Member State.

The applicants before the German Court argued that the ECB had overstepped its Treaty role by creating a programme that should be viewed as a tool of economic, not monetary policy and it was also alleged that the programme violated the prohibition of monetary financing. The plaintiff also argued that the OMT programme, when executed, would constitute a violation of the budget sovereignty of the German parliament. This right is provided for in German basic law (the German constitutional law), so the plaintiff ended up of the German Federal Constitutional Court (FCC), which decided not to give its decision until it had confirmed the programme to be either compatible or non-compatible with EU law. The FCC, therefore, decided to ask preliminary questions to the CJEU. It is important to note that these were the first preliminary questions asked by the FCC and the tone of the questions was bold. On the other, the actions and attitude of the ECB were expressly determined as ECB president Mario Draghi’s statement: „whatever it takes to preserve the Euro” – although the full quote included the words „within our mandate”.

Overall, the Court concluded that the OMT programme is compatible with the prohibition on monetary financing: under those conditions, indirect bond-buying through the OMT programme would have an effect on Member States’ access to credit, but that effect would not be equivalent to that of buying bonds directly from Member States (monetary financing) and it would not defeat the purpose of the ban of monetary financing, which is to encourage Member States to pursue a prudent budgetary policy.

After this ruling, a series of claimants in Germany opposed the legality of the ECB buying public bonds on secondary markets under public sector asset purchase programme (PSPP, generally referred to as ‘quantitative easing’ programme) and the FCC then referred the case to the ECJ. The ECB’s QE programme, which is being gradually wound down, was launched to drag the eurozone economy out of low inflation and to stimulate growth. According to the FCC, this programme violates the previously-discussed legal framework that was generated by the court in the Gauweiler case. After looking at its national concerns, the FCC refers to the prohibition on monetary financing. The FCC argues that even though the bonds are purchased on the secondary market, de facto the market sees it as a guarantee that the Eurosystem will purchase these bonds.

After assessing the case, advocate general Melchior Wathelet rejected complainant arguments that the ECB’s 2 trillion-euro purchases of government bonds had bankrolled indebted governments and distorted financial markets, concluded that the „decision of the ECB establishing the PSPP has not revealed any factor capable of affecting its validity”. Wathelet defended the ECB, saying the programme „does not infringe the prohibition of monetary financing” and did not exceed the Bank’s mandate. The programme, the chief judge argued, does not give the ECB’s action an effect equivalent to directly buying member states public debt. Concerning the allegations that PSPP might distort conditions of issue of government bonds, the advocate general decided that PSPP offers „sufficient guarantees” to prevent it. Wathelet highlighted that the ECB Governing Council decides on the scope, the start, the continuation and the suspension of the intervention on the secondary markets and is subsidiary to other asset purchase programmes. Furthermore, he stressed that the purchase is limited and is representative of all members of the euro area.

The claimants not only questioned the programme itself but also the participation of the Bundesbank in the implementation of those decisions and the failure of the Federal Government and the Lower House of the German Federal Parliament to act in respect of that participation and decisions, considering that the ECB undermined the principle of democracy enshrined in the Grundgesetz German Basic Law and German constitutional identity. Once that ruling is out, the case will go back to the German court in Karlsruhe, where the group of conservative German academics and politicians brought the original case. Although the programme is set to end at the end of the year in any case, the Court’s ruling will set a key precedent for future ECB policy decisions. 

For the list of references, click HERE.

Author: Petra Agnes Kanyuk, PhD Student, University of Debrecen



Source of the images used:

Kategória: European UnionCentral BudgetHírgyűjtemény: Közjogi Albizottság: Korábbi hírek: Felnőttképzés: Közrendészet és magánrendészet: Közigazgatási bíráskodás: Közérdek: Helyi Önkormányzatok: Land grabbing: PPP: Energiakornyezet: Tudományos folyóirat: Foreign Investment and International : 
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