Brexit means brexit'. reflections on the legal aspects regarding the European Union and the United Kingdom

Author:Ionut-Bogdan Berceanu
Position:National University of Political Studies and Public Administration, Faculty of Public Administration
Pages:11-20
SUMMARY

Following the referendum in which 17 million people voted to leave the EU, Theresa May – the British Prime Minister, has said in various occasions that "Brexit means Brexit"1 and that there will be no attempts to stay within the European Union, even if the process is one complex, without precedent and without a clear result. Apart the political and economic dimensions this procedure implies, there are also some legal issue regarding how it should be done and what will be after “Brexit” will be concluded. Thus, this paper has as main purpose to underline some legal aspects regarding the Brexit and they will be reflected in the United Kingdom and at the European Union level. The research methodology of the paper is mainly qualitative, based on specialty literature review and analyze of regulations.

 
CONTENT
„Brexit means brexit” 11
„BREXIT MEANS BREXIT”. REFLECTIONS ON THE LEGAL
ASPECTS REGARDING THE EUROPEAN UNION
AND THE UNITED KINGDOM
Ionu-Bogdan BERCEANU1
National University of Political Studies and Public Administration,
Faculty of Public Administration
Abstract
Following the referendum in which 17 million people voted to leave the EU, Theresa May – the
British Prime Minister, has said in various occasions that "Brexit means Brexit"1 and that there will
be no attempts to stay within the European Union, even if the process is one complex, without
precedent and without a clear result. Apart the political and economic dimensions this procedure
implies, there are also some legal issue regarding how it should be done and what will be after
“Brexit” will be concluded. Thus, this paper has as main purpose to underline some legal aspects
regarding the Brexit and they will be reflected in the United Kingdom and at the European Union
level. The research methodology of the paper is mainly qualitative, based on specialty literature
review and analyze of regulations.
Keywords: Public Law, European Union Law, Article 50, Lisbon Treaty, Common Market,
UK referendum.
1. Introductory notes about „Brexit”
At a simple search on Google using the word Brexit, it can be observed that
one can obtain an astonishing result. More than 105,000,000 results in 0.85 seconds.
This fact shows how important is this subject, how it generated discussions,
documents, papers, point of view, journal articles from all over the world and from
all the areas of society.
The word Brexit started to be used by politicians, mass-media and society in
order to define the withdrawal from the EU of the United Kingdom. All the
process started with the referendum results from Thursday 23 June, 2016,
organized with the purpose Britons to decide whether the UK should leave or
remain in the European Union. Leave won by 51.9% to 48.1%. The referendum
turnout was 71.8%, with more than 30 million people voting. And starting for this
pint it could be stated that the Brexit process begin.
1 See, the official website of the BBC: http://www.bbc.com/news/uk-politics-36782922,
accessed: 21.01.2017.
Law Review vol. VII, issue 1, Januar
y
-June 2017, pp. 11-20
12 IONUŢ-BOGDAN BERCEANU
United Kingdom become part of the European Community (today, European
Union) on 1st January 1973, after a process started years ago, on 1st August 1961
and in which, the UK faced some opposition from the French President of that
time, the general Charelles de Gaulle.
Here, it has to be underlined that in the history of the European Union, there
were some withdraw precedents, but none, of one Member State. Through these
precedents, there were: [1]
The Algeria case: Algeria left the then European Communities (EC) in 1962
but it was not a Member State and was, at that time, part of France.
Greenland left the EC in 1985 but it was not a Member State but rather part
of Denmark.
Saint-Barthélmey left in 2012 but was a small island, it was also not a
Member State.
Regarding the legal aspect of the process of Brexit, it should be underlined that
before 1st December 2009- the date the Lisbon Treaty entry into force, this process
could not be possible, at least in formal mode. The explanation regards the fact that
the Treaty of Lisbon by its adoption and ratification of all EU member states
amended the existing Treaties (Euratom Treaty, Treaty regarding the Functioning
of the EU and the Treaty if the European Union) and introduced a provision that a
EU member state could withdrawal from the EU in some conditions.
The Article 49 A of the Lisbon Treaty, which amended the Article 50 of the
Treaty regarding the European Union is providing that:
1. „Any Member State may decide to withdraw from the Union in accordance
with its own constitutional requirements.
2. A Member State which decides to withdraw shall notify the European
Council of its intention. In the light of the guidelines provided by the European
Council, 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. That agreement shall be negotiated in
accordance with Article 218(3) of the Treaty on the Functioning of the European
Union. It shall be concluded on behalf of the Union by the Council, acting by a
qualified majority, after obtaining the consent of the European Parliament.
3. The Treaties shall cease to apply to the State in question from the date of
entry into force of the withdrawal agreement or, failing that, two years after the
notification referred to in paragraph 2, unless the European Council, in agreement
with the Member State concerned, unanimously decides to extend this period.
4. For the purposes of paragraphs 2 and 3, the member of the European
Council or of the Council representing the withdrawing Member State shall not
participate in the discussions of the European Council or Council or in decisions
concerning it.
5. A qualified majority shall be defined in accordance with Article 238(3)(b) of
the Treaty on the Functioning of the European Union”.
„Brexit means brexit” 13
As it can be observed, in the formal aspects of the Treaty Article 50 TEU does
not set down any substantive conditions for a Member State to be able to exercise
its right to withdraw, rather it includes only procedural requirements. It provides
for the negotiation of a withdrawal agreement between the EU and the
withdrawing state, defining in particular the latter's future relationship with the
Union. If no agreement is concluded within two years, that state's membership
ends automatically, unless the European Council and the Member State concerned
decide jointly to extend this period.
The legal consequence of a withdrawal from the EU is the end of the
application of the EU Treaties in the state concerned from that point on. EU law
ceases to apply in the withdrawing state, although any national acts adopted in
implementation or transposition of EU law would remain valid until the national
authorities decide to amend or repeal them. [2]
On these legal issues, the research of the paper will be based. As was already
mentioned, this paper tries to underline some aspects about the Brexit process and
to present some aspects in the law field, which regards the United Kingdom and
the European Union.
2. General considerations of the Brexit Process
It was not until the Treaty of Lisbon entered into force on 1 December 2009
that EU law dealt explicitly with the possibility of a Member State withdrawing
from the EU and provided a mechanism to address the issue. As just mentioned,
the right to withdraw from the organization almost inevitably existed anyway
because accession to the EU is not an irrevocable act. The Treaty of Lisbon
introduced art.50 of the Treaty on the European Union („TEU”) which sets out a
regime for a Member State to withdraw.[1]
The formal withdrawal process gas many steps (see Fig. 1). It is initiated by a
notification from the Member State wishing to withdraw to the European Council,
declaring its intention to do so, followed by the answer in which it is indicating the
principles for negotiations.
Figure 1: Steps of the withdrawal process from the EU
Source: European Parliament Briefing.(2016)/ Article 50 TEU: Withdrawal of a
Member State from the EU, p. 4
14 IONUŢ-BOGDAN BERCEANU
UK sent its notification on 29 March 2017, addressed by the British
prime-minister Theresa May to the president of the European Council – Donald
Tusk. In the letter it is explained the process which the British Government intends
to undertake, which is starting from the repeal of the European Community Act
(ECA) from 1972 that gives effects to the EU law in the UK territory [3]. This
process will concretized in a bill, already announced as Great Repeal Bill. The main
issues of the Bill are:
it will repeal the European Communities Act 1972
the Bill will preserve EU law where it stands at the moment before leaving
the EU. Parliament (and, where appropriate, the devolved legislatures) will then be
able to decide which elements of that law to keep, amend or repeal once we have
left the EU. The UK courts will then apply those decisions of Parliament and the
devolved legislatures.
the Bill will enable changes to be made by secondary legislation to the laws
that would otherwise not function sensibly after leaving the EU.
After the formal notice, the period of 2 years for negotiations started. The
period, can be extended by unanimous agreement. But, in the answer to the
notification titled “European Council (Art. 50) guidelines for Brexit negotiations”,
it was already stated the timeframe set out in Article 50 TEU ends on 29 March
2019.
Looking at the aspects of the Brexit process, it should be underlined that
Article 50 of the TEU does not prescribe what would be the relationship between
the EU and any Member State which leaves. Unless something is agreed otherwise,
the Member State which leaves becomes a third State.
According to Article 50 itself at the end of this process, there could the
following results:
divorce agreement, accompanied by transitional arrangements;
an agreement to extend the negotiating period;
no agreement with the result that the EU Treaties cease to apply at the end of
2 years.
Regarding these facts, it could be state that the agreement based upon the
negations between the EU and the leaving state is the hey of the success finishing
of all the process. In this case, the withdrawal agreement is not primary EU law, it
is an international agreement – subject to the international law, since it is
concluded between the EU and the withdrawing state and not between the latter
and the rest of the Member States. [4]
3. Legal aspects of Brexit on the United Kingdom
The legal aspects of the Brexit starts from the referendum results.
Implementing the EU referendum vote will institute major constitutional change in
the UK. Because of its uncodified constitution, the UK lacks specific mechanisms
„Brexit means brexit” 15
for constitutional amendment, in contrast to many other jurisdictions that make
special provision for it [5].
One of the major legal consequences of the Brexit will be the application of the
EU law. Since its foundation, there have been over 100,000 legislative instruments
adopted by the EU and these are all part of EU law. In the Brexit case, the EU’s
treaties would cease to apply if the UK were and they will be no longer relevant in
the UK courts or UK law.
The EU’s regulations are directly applicable automatically. They do not need
implementation into UK (or any Member State) 22 law so, they are easier to deal
with in the context of Brexit by than directives. Directives are the most difficult of
the sources of EU law. They need to be implemented into Member State law. So,
Member State law has to be amended to cope with the changes brought about by
the directives. This means that unlike treaties or, for the most part, regulations
which might simply be ignored after the UK has left the EU, the reality is that UK
law will have been amended to implement directives [5].
Withdrawal from the Union would involve the unravelling of a highly
complex skein of budgetary, legal, political, financial, commercial and personal
relationships, liabilities and obligations [5]. Also the Brexit will have legal effects
rights given to EU citizens, such as: trading rights, free movement rights, social
rights, non-discrimination rights.
Scholars argued that over the longer term, disentangling the UK from the
substantial body of EU legislation which applies in the UK would be a massive
endeavor, which would take many years to complete [5].
Another important aspect of the UK is the so called devolved nations
(Scotland, Wales, Northern Ireland). This is regarding the fact that from
perspective of the UK Government, the British Constitution is unitary in nature.
Foreign affairs are a reserved matter under Schedule 5 of the Scotland Act 1998,
and this includes EU membership. Devolved authorities have no legal rights in this
area, and, at most, may be consulted [5].
But even if these devolved authorities have not formal word to say in the
Brexit process, the EU law is incorporated directly into the devolution statutes in
Scotland, Wales and Northern Ireland. For example, section 29(2)(d) Scotland Act
1998 provides that Acts of the Scottish Parliament that are incompatible with EU
law or with European Court of Human Rights are not law. The same is for
provided in the Section 108(6) Government of Wales Act 2006 states that any act of
the Welsh Assembly incompatible with EU law or the European Court of Human
Rights, falls outside its competence. Section 24 of the Northern Ireland Act 1998
prohibits any legislation contrary to EU or European Court of Human Rights law.
General principles of EU law have been a very significant and growing feature
of the common law worldin both England and Wales as well as Ireland. Those
principles would not be part of the Brexited UK law and may not be addressed in
any withdrawal treaty. The British Courts have been influenced by concepts of EU
16 IONUŢ-BOGDAN BERCEANU
law such as proportionality, non-discrimination and they have entered the UK’s legal
toolkit. The process of unpicking and untangling EU law from the UK legal
environment should not be underestimated [1].
All these demonstrates that even the British Parliament will repeal the
European Community Act from 1972, this would not bring an end to the domestic
incorporation of EU law in devolved nations. It would still be necessary to amend
the relevant parts of devolution legislation [5].
The 40 years UK membership had a significant impact on the legal system of
the country. There could be identified some major issues generated he Brexit [1]:
Competition law. Many of the UK competition law principles were drafted
after EU competition law, after Brexit it should be seen if the UK courts will follow
the EU jurisprudence;
Standards in trade. If exporters in the post-Brexit UK wanted to access the
EU’s internal market, then the goods and services would have to meet the EU’s
standards.
Contracts. It is possible that in some contracts, the presence of a party in the
EU may be required so as to perform the contract.
Banking and insurance. The EU banking rules would, unless retained by way
of an agreement, fall away in the context of the UK.
Research and funding agreement. Many businesses have research agreements
with
universities and other research bodies. These educational counterparties to
the companies are bringing to the agreement not only their educational expertise
but also, in many cases, EU funding.
Environment. The EU has influenced enormously the law relating to the
environment (including planning) in the EU Member States. In this area would be
very hard to make changes without affecting the general principles of EU
environmental law, which are high principles recognized and partly accepted all
over the world.
Pensions. EU law has influenced the evolution of pensions law over time,
particularly in the area of equality. It is generally assumed that Brexit would have
little initial impact on pensions law but there would be an impact over time.
All these are few of the many legal, economical and political issues to be
solved. The outcome of the Brexit talks will depend crucially on how the
member-state governments, the European Commission, and the members of the
European Parliament choose to approach them [8].
4. Legal aspects of Brexit on the European Union
The exit from the UE of the UK is o bidirectional process, it has not only
implication on the UK, but is affecting also the European Union. First of all, it has
to be underlined that is the first time in the history of the European construction
„Brexit means brexit” 17
when this a Member State decide to leave the Union, and these process is complete
new also for the EU, without a clear outcome. European governments and EU
institutions have said that they are determined to protect the EU and the integrity
of the European project. They do not want to water down the ideals of that project
or give the UK a deal that might attract other countries down the same path. All
European leaders know that a hard or disorderly Brexit would damage their own
economies and citizens, not just those of the UK.
Brexit would change how EU institutions operate not just during the
withdrawal period, but also afterwards. It would affect the balance of power
among member states and therefore the policies that the EU would pursue. It
would also change the resources upon which the EU could draw.
One of the biggest issue of leaving the EU of the UK is the impact this will
have on the European economy and on the European Market. In 20152016 the UK
made an estimated gross contribution (after the rebate2) of £13.6 billion. The UK
received £2.8 billion of public sector receipts from the EU, so the UK’s net public
sector contribution to the EU was an estimated £10.8 billion [9].
Legally speaking, the UK will remain a member of the EU until its departure
has been negotiated and will continue to contribute to the EU budget until it
formally leaves3.
But also after leaving the EU, UK may still make financial contributions to the
EU. the UK may pay to participate in some EU programmes like Horizon 2020, the
EU’s research and innovation programme, or any successor programme. The cost
of participating in EU programmes will form part of the UK’s exit negotiations [9].
Another important issue is the issue of the population and its influence on the
EU institutions. The composition of the EU institutions are expected to change as
of the day the withdrawal takes effect, with members from the withdrawing state
losing their seats in the various institutions and bodies, although transitional
arrangements might be required for the period immediately after that date [2].
The UK is the EU’s third most populous member state, comprising 12.76% of
the EU’s overall population. This makes the UK an influential player in the Council
of the European Union and in the European Parliament. UK representatives and
nationals are currently present in all of the EU’s core institutions [10]:
The UK’s Commissioner, Jonathan Hill, was responsible for financial
stability, financial services and Capital Markets Union. He resigned after the Brexit
results of the referendum.
1,126 British nationals are employed in the European Commission (3.8% of
the total).
the European Parliament (EP) has 751 members. It is unclear whether the
UK’s 73 seats would be lost or reallocated. The decision establishing the
2 The UK receives a rebate from the EU which is deducted from its contribution. The rebate aims
to correct the issue of the UK making relatively large net contributions to the EU.
3 More or less until 29 March 2019.
18 IONUŢ-BOGDAN BERCEANU
composition of the EP including the distribution of the seats among the Member
States, is adopted by the European Council on the initiative of the EP and with its
consent (Article 14(2) TEU)4.
Brexit could have the following policy implications [6]:
an increased regulatory burden on EU businesses;
weaker copyright protection in the EU;
a smaller EU budget as a whole, with increased member-state contributions;
a stronger push for tax harmonisation and higher taxation of financial
transactions;
less support for nuclear and unconventional energy sources.
One of the big legal issue is that concerning the post Brexit relation between
the UK is the access of UK to the Common Market on one hand, and the
maintaining of all four free movements in the UK of the EU citizens, on other hand.
There could be identified some legal possible solutions to this situation.
One of the solution, could be that United Kingdom to join the European
Economic Area (EEA). This solution is also known as the „Norwegian Model”.
Another one is concluding a European Free Trade Agreement (EFTA) – like
already Switzerland did in 1972. These solutions, will involve that the UK would
have to accept much of the EU substantive regime relating to the four freedoms (to
which the most visible is the free movement of persons) and competition law, as
well as parts of the EU institutional regime and legal provisions. However, the
decision will be, it will be hard to access the Common Market without accepting
some legal dimensions which implies the four liberties. It was already stated the
controlling the immigration to the UK is one of the big issue which conducted to
the result of the referendum. This aspect was already underlined in a document of
the British Government: [11] “UK will remain an open and tolerant country, and
one that recognizes the valuable contribution migrants make to our society and
welcomes those with the skills and expertise to make our nation better still. But in
future we must ensure we can control the number of people coming to the UK
from the EU”.
5. Conclusion
Even if „Brexit means Brexit” and it become reality through the referendum,
and the desire to leave the EU was officially communicated to the European
Council on 29 March 2017, there are still a lot of unknowns to be identified and
solved. This because EU law has created vast networks of rights and obligations,
not only between Member States, but also for nationals of those States.
4 For example, European Council Decision 2013/312/EU of 28 June 2013 redistributing the seats
among the Member States while allocating seats to Croatia and not exceeding the maximum of 751
seats.
„Brexit means brexit” 19
There are still five possible outcomes of what “Brexit could mean” [8]:
a comprehensive deal covering both the terms of Brexit and the details of the
UK’s future relationship with the EU;
a deal on Brexit only, plus transitional arrangements to tide matters over
while the future relationship is determined;
a Brexit deal only, with no transitional arrangements while future relations
are agreed;
no deal, with Brexit taking place after two years via Article 50’s automatic
provision;
a decision for the UK to stay within the EU after all.
Whatever Brexit „will mean” at the end its legal implication on the UK and EU
is a tremendous one considering the complexity of the EU law, principles and
rights which have been applied and integrated in all spheres of the British society.
Also, the EU will never be the same, after the conclusion of the Brexit process, and
legally some countries and France and Germany could propose as a display of
unity a deeper integration, especially in the Eurozone or could insist on the idea of
multi-speed Union.
REFERENCES
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Practitioner – May 2016, pp.123-130.
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Member State from the EU, available online at the link: http://www.europarl.
europa.eu/RegData/etudes/BRIE/2016/577971/EPRS_BRI(2016)577971_EN.pdf ,
accessed: 28.05.2017.
[3] UK Prime Minister .(2017). Notification letter for withdrawal of the UK
from the EU, addressed on 29 March 2017 to the European Council, p. 2.
[4] Łazowski, A. (2012). Withdrawal from the European Union and alternatives
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[5] Douglas-Scott, S. (2016). Brexit, Article 50 and the Contested British
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[8] Renwick, A. ( 2017). The Process of Brexit: What Comes Next?. UCL
European Institute Working Paper, pp.54-55.
20 IONUŢ-BOGDAN BERCEANU
[9] Keep, M. (2017), The UK's contribution to the EU Budget. Briefing Paper
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[11] HM Government.(2017). The United Kingdom’s exit from and new
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