The treatment by the United Kingdom of Union citizens remaining on its territory after Brexit and conversely that of UK nationals by EU27 Member States on theirs has given rise to much discussion and ...analysis. By contrast, there has been comparatively little systematic and detailed exploration of the question of the impact of Brexit on the exercise of Union citizens’ rights against their own Member State. It is an issue which is for the most part ignored in the current Withdrawal Agreement. The purpose of this article is to show that this blind spot opens up a potential gap in legal protection of the rights of Union citizens, which is likely to remain regardless of the outcome of the Brexit negotiations and whether a withdrawal agreement is concluded or not. The paper discusses the extent to which the adversarial nature of the withdrawal process has contributed to this failure to address this issue and the ways in which courts could step in to provide the legal protection that political processes were unable to deliver.
The day after Nicolaides, Phedon
Maastricht journal of European and comparative law,
04/2017, Letnik:
24, Številka:
2
Journal Article
Recenzirano
The purpose of the two-year rule in Article 50 TEU is to prevent the remaining Member States from delaying the exit of the withdrawing Member State through stalling tactics. This article argues that ...the two-year period is a double-edge sword. It affords very little time to the withdrawing Member State to adjust its domestic legislation, regulatory system and administrative structure to be able to function effectively on the day after exit from the EU. The UK’s Great Repeal Bill proposes a ‘copy and paste’ approach. However, this approach is only a partial solution to the problem of the ‘exit-induced’ legal lacuna. With the use of two case studies, the article demonstrates that the UK will have to establish new regulatory procedures and redefine EU concepts inserted in national law. The UK will ‘regain control’ but will have to follow EU practice. At some point in the future it will also encounter the dilemma of diverging from EU practice and creating two sets of compliance standards for its companies.
On 29 March 2017, the United Kingdom (UK) Government notified the European Council (EC) of its intention to withdraw from the European Union (EU) legal order. On 31 January 2020, the UK entered a ...transition period, during which it remains bound to the EU Treaty Framework. This review essay examines the near three-year period of the UK’s attempted cessation from the EU (Brexit). It argues that what is most striking about the Brexit case is that it reveals the extent to which EU member states remain bound by ideologies and tropes developed during the era of European colonisation—even in their relationship with each other. The review essay draws upon Brenna Bhandar’s
Colonial lives of property: Law, Land and racial regimes of ownership,
Danny Dorling and Sally Tomlinson’s
Rule Britannia: Brexit and the end of empire
, and Eva Mackey’s
Unsettled expectations: Uncertainty, land and settler decolonization
to show how Brexit bears upon themes that have long preoccupied postcolonial scholars working in a variety of contexts and geographical locations. From the Brexit example, the review article highlights the persistence of colonial projects of (re)invention and the appropriative techniques and tropes that attend these and, above all, it highlights the necessity of decolonial violence.
Brexit and EU private international law Pilich, Mateusz
Maastricht journal of European and comparative law,
06/2017, Letnik:
24, Številka:
3
Journal Article
Recenzirano
Procedure of the British withdrawal from the European Union, officially launched on the 29th of March this year, opens not only questions of the general public-law governance but, first and foremost, ...gives rise to concern about its overall impact on the cross-border private-law transactions involving the UK and the rest-EU Member States. The article is focused on the regulatory risk within the framework of the Judicial Cooperation in Civil Matters (JCCM), encompassing the EU common private international law (PIL) provisions. Some misapprehensions about a possible continuity of the cooperation based on the existing PIL international treaties (e.g. the Lugano Conventions or the 1980 Rome Convention) on the one hand, and the deficiencies of the post-Amsterdam JCCM legislative mechanisms on the other hand, have been considered. The current European legislative policy dramatically lacks consistency even with regard to the EU countries which have not been vested with a special status comparable to the UK, Ireland, or Denmark. Thus the article suggests a possibility of restructuring the JCCM so as to encourage the UK to cooperate with the EU in the form of a ‘Continental PIL Partnership.’
This article analyses the Article 50 TEU debate and the argument that for the UK Government to trigger the formal withdrawal process without explicit parliamentary authorisation would be unlawful, ...because it would inevitably result in the removal of rights enjoyed under EU law and the frustration of the purpose of the statutes giving those rights domestic effect. After a brief survey of Article 50, this article argues first of all that the power to trigger Article 50 remains within the prerogative, contesting Robert Craig's argument in this issue that it is now a statutory power. It then suggests a number of arguments as to why the frustration principle may be of only doubtful application in this case, and in doing so it re-examines one of the key authorities prayed in aid of it - the Fire Brigades Union case.
After the referendum in June 2016, both the EU and the UK were plunged into political turmoil. The withdrawal procedure must be triggered by the UK government, in accordance with the UK’s ...constitutional requirements. The judiciary has consequently faced questions whether the government could use the royal prerogative and the status of the devolved legislatures in the context of triggering Brexit. The Supreme Court confirmed that the UK government cannot trigger Article 50 TEU without an authorizing Act of Parliament. On the role of the devolved legislatures, the Supreme Court ruled that these do not have a veto on the UK’s decision to withdraw from the EU. The UK now needs to decide what it wants to achieve in the negotiations for its future relationship with the EU. In this article, a few models are explored. Although it currently seems that the UK government is leaning towards a ‘hard’ or ‘clean’ Brexit, a deeper analysis of the options reveals that there is no easy answer to the question of what the new EU–UK relationship will be like. The purpose of this article is to analyse the options available to the UK rather than to advocate any one particular model.
On 3 November 2016 the High Court decided in the case R (Miller) v. Secretary of State for Exiting the European Union that the Prime Minister of the United Kingdom cannot serve notice under Article ...50 TEU that the UK wishes to leave the European Union unless the British Parliament has authorized this. The prerogative powers of the Prime Minister do not extend to domestic regulation or deregulation, which would be the inevitable effect of withdrawal from the UK. The decision was received with horror by those in favour of Brexit, who feared that Parliament may attempt to impose conditions on the process and achieve a soft, or even half-Brexit. This seems in fact unlikely, and the Court's affirmation of the sovereignty of Parliament is an unlikely focus for nationalist ire. In any case, the decision may be amended or overturned on appeal, with a decision of the Supreme Court expected soon. This note looks at the judgment of the High Court, the constitutional logic behind it, and its possible consequences.
On 23 June 2016 the voters, by a slim majority, decided that the United Kingdom (UK) should leave the European Union. This has been a major earthquake with political and economic aftershocks going ...beyond the white cliffs of Dover. They are destined to continue for months, if not years. For the first time in history of the European Communities/the European Union a Member State has decided to ask for a divorce. It may well be a major turning point, a wake-up call for the EU, its political elites and millions of EU citizens. It may lead to stagnation and slow demise of the EU, it may well lead to consolidation or even deeper integration. While predicting the future should be left to fortune-tellers, the academic community will use a lot of ink to analyze, among other things, the political, legal and economic implications of the Brexit vote. This short Editorial is by no means an attempt to analyze the Brexit referendum in great depth. It merely aims to give some food for thought.
This paper examines Article 50 TEU and develops a typology of the possible effects of the withdrawal of a Member State from the EU. Because Article 50 TEU refers to a negotiated, post-exit, ...relationship between the withdrawing Member State and the Union, the typology focuses on the effects that may be experienced by the withdrawing Member State. Not all of the identified effects are of equal importance and not all of them must necessarily materialize. Their occurrence and magnitude will very much depend on the exit negotiations and the agreed post-exit relationship between that Member State and the EU. The paper also argues that withdrawal is unlikely to lead to the severing of all links with the EU or confer real policy independence to the withdrawing country. Moreover, non-application of EU law will require substantial re-legislation in the withdrawing country. The withdrawing country is unlikely to be insulated from developments in EU law.
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