tag:blogger.com,1999:blog-8704899696538705849.post4143574127644374633..comments2024-03-29T04:53:16.437-07:00Comments on EU Law Analysis: Brexit: you can U-turn if you want to. The CJEU judgment in WightmanSteve Peershttp://www.blogger.com/profile/05869161329197244113noreply@blogger.comBlogger11125tag:blogger.com,1999:blog-8704899696538705849.post-25692129178964247912018-12-18T09:32:05.677-08:002018-12-18T09:32:05.677-08:00Apparently there was UK government money set aside...Apparently there was UK government money set aside for EP elections awhile back, according to press reports. Steve Peershttps://www.blogger.com/profile/05869161329197244113noreply@blogger.comtag:blogger.com,1999:blog-8704899696538705849.post-12201296579451538472018-12-18T08:54:02.451-08:002018-12-18T08:54:02.451-08:00Dear Professor Peers,
just practically seen, imag...Dear Professor Peers,<br /><br />just practically seen, imagine the notification is withdrawn. The UK would then have to organize elections for the EP in 2019, since it's seats will be retained based on Art. 3(2) of European Council Decision 2018/937. <br />What would happen if the UK fails to do so? <br />Is it in any way possible to still organize these elections and are you aware of any 'no deal-no Brexit' preparations to this purpose?David de Grootnoreply@blogger.comtag:blogger.com,1999:blog-8704899696538705849.post-35989309861004857392018-12-12T22:22:57.084-08:002018-12-12T22:22:57.084-08:00There is no doubt whatsoever that you are wrong. T...There is no doubt whatsoever that you are wrong. The Full Court refers four times in Wightman to the possibility of a State leaving the EU without an agreement. The General Court judgment in Shindler likewise referred to this possibility four times. Of course the EU cam conclude treaties with a State after it leaves the EU; but that is an option under some other legal basis (Article 8 is not a legal basis), not an obligation to negotiate a withdrawal agreement under the specific legal basis of Article 50, which has then expired. No provision of Article 50 refers to powers being exercised after the withdrawal date, as confirmed by the separate reference to the future relationship framework. Moreover, you would have to explain who would sue who, in which court, for what remedy, in order to get a judgment in specific time to stop a no deal outcome, and how this could possibly work if the UK has not ratified a withdrawal agreement, which is the obvious scenario that the words "failing that" in Article 50(3) refer to. Steve Peershttps://www.blogger.com/profile/05869161329197244113noreply@blogger.comtag:blogger.com,1999:blog-8704899696538705849.post-64041033995102569752018-12-12T16:57:06.327-08:002018-12-12T16:57:06.327-08:00Your argument (also seen elsewhere) is that in ord...Your argument (also seen elsewhere) is that in order to prolong negotiations the UK must continue to be a member of the EU under extension pursuant to 50(3). Nowhere is that stated. Nor it it stated that any agreement must be concluded in advance of a withdrawal under the guillotine. Such a withdrawal is initially a "no deal withdrawal", but since there is no termination date set for the conclusion of a deal, it does not remain one once a deal is concluded afterwards. To pretend that no deals would ever be concluded with the EU after leaving is also nonsensical: the only issue is whether they fall under Article 8 or Article 50. Until there is an Article 50 deal, the EU has not fulfilled its obligations. I'm sorry, but I do not see any force in any of your arguments in the light of the wording of Article 50. The point is that there remains an obligation to negotiate a deal mutually agreed and ratified by the withdrawing state and the European Parliament and Council per Article 50 conditions - that is the direct meaning of the words, and it does extend the EU's obligations beyond exit day (as does Article 8 and 3 (5) on trade). There is no right of the EU to impose an agreement to its liking at the expense of the withdrawing state, and there is no right not to agree either. <br /><br />Article 50 is a shoddy piece of work: any commercial joint venture agreement would include an extensive section on what happens if a party withdraws from the agreement, including arbitration provisions in the event of dispute. However, it is what it is.<br /><br />Of course, the nature of a deal that is completed after exit may vary significantly from one that is completed beforehand. Posturing about how things may turn out after exit will be replaced by reality, which could substantially alter the balance of negotiating power. That is why it is a high risk strategy.It doesn't add up...noreply@blogger.comtag:blogger.com,1999:blog-8704899696538705849.post-12572643752293035072018-12-11T02:11:22.131-08:002018-12-11T02:11:22.131-08:00No one has said there's a legal requirement to...No one has said there's a legal requirement to extend the Article 50 period. Your argument that the EU is obliged to conclude an agreement is triply untenable: a) because Article 50 does not cover what happens after Brexit Day; b) because Article 50 expressly provides for a no deal scenario; and c) because in any event the EU has already negotiated a withdrawal agreement; how could it conclude it if the UK does not? As for your interpretation of the judgment, you have ignored the word 'intention': it's a decision to notify the *intention* to withdraw. Steve Peershttps://www.blogger.com/profile/05869161329197244113noreply@blogger.comtag:blogger.com,1999:blog-8704899696538705849.post-36066631004149933612018-12-10T05:08:18.960-08:002018-12-10T05:08:18.960-08:00There is NO requirement in Article 50 for the exte...There is NO requirement in Article 50 for the extension of membership in order to continue withdrawal negotiations. 50(3) refers only to extending membership (with no time limit on how long a period that might be for - which might therefore be from 1 day or to eternity): it is solely concerned with defining when membership ends. 50(2) imposes an obligation on the EU..."the Union shall negotiate and conclude an agreement" with no time limit on that negotiation: it remains bound to conclude an agreement even after the Withdrawing State has left under the guillotine. The obligation is only satisfied when the agreement is concluded (which is set out as being approved in Europarl and by QMV in Council, but plainly cannot be without the agreement of the Withdrawing State). The guillotine provides a guarantee that a State can withdraw despite filibustering and frustration tactics by the EU, as well as providing some incentive for the State to negotiate in good faith.<br /><br />Turning to the judgement itself it seems that the ECJ has ignored the fact that in order to submit a notice at all, a state must have <b>decided</b> to withdraw under 50(1). That surely renders the distinction of intention vs decision irrelevant - the decision has been made against the terms of the TEU plus Cameron amendments. Now, were the EU to say "Sorry - can we persuade you to stay by offering better terms?" that would be worth considering as a fresh decision, providing that it had the full backing of the EU Council (as required by 50(3)). But otherwise since the formal date of ceasing membership is subject to the guillotine or other agreed date, a withdrawing state is unable to notify the timing of its withdrawal, and to that extent it remains an intention.<br /><br />It seems odd that the respondents (EU,UK) seem to have confined their arguments to narrow grounds: there were no submissions on the applicability of VCLT for example, so the points put here<br /><br />https://blogs.sussex.ac.uk/uktpo/2017/03/17/can-a-notification-under-article-50-teu-be-unilaterally-withdrawn/<br /><br />were not addressed. It is almost as if there was connivance not to make it difficult for the judgement to conclude that revocation is permitted. It doesn't add up...noreply@blogger.comtag:blogger.com,1999:blog-8704899696538705849.post-78455317615581081902018-12-10T05:06:52.740-08:002018-12-10T05:06:52.740-08:00Since Article 50 has been added to the Treaties, a...Since Article 50 has been added to the Treaties, any reference to the permanent transfer of sovereignty is no longer good law. Steve Peershttps://www.blogger.com/profile/05869161329197244113noreply@blogger.comtag:blogger.com,1999:blog-8704899696538705849.post-79359837610776553652018-12-10T04:09:01.937-08:002018-12-10T04:09:01.937-08:00a unilateral sovereign right to blahblahblah
The e...a unilateral sovereign right to blahblahblah<br />The etymological origin of "sovereignty" is "superior" in Latin which in English means … "superior". <br />Is the UK of NI and GB superior to the EU?<br />Flaminio Costa v ENEL (1964) Case 6/64 was a landmark decision of the European Court of Justice which established the primacy of European Union law (then Community law) over the laws of its member states', says Wikipedia.<br />Barnard and Peers point out on p. 162 of the 2017, 2nd edition, of their "European| Union Law" (Oxford UP)_that this judgment says that the transfer by the States from their domestic legal system to the Community legal system of the rights and obligations under the Treaty carries with it a PERMANENT [my emphasis] limitation of their sovereign rights against which a subsequent unilateral act incompatible with the concept of the Community cannot prevail.<br />Today’s judgment conveniently does not mention Costa/Enel.<br />In my native Southern Low-Countries the Supreme Court held (Cass. 27 May 1971, Arr. Cass. 1971, 959; S.E.W. 1972, 42.) in 1971, that’s before the UK accession to the EC, that a self-executing treaty has in the legal order of the Southern Low-Countries priority over the laws of the parliament of the Southern Low-Countries and also over the Belgian constitution, even if these laws are posterior to EEC treaty. What is the UK constitution? Good question!<br />How can Article 50 be maintained?<br />Ivo Cerckelhttps://www.blogger.com/profile/08872010074153913109noreply@blogger.comtag:blogger.com,1999:blog-8704899696538705849.post-57314456240426166852018-12-10T03:58:16.329-08:002018-12-10T03:58:16.329-08:00The judgment doesn't address this issue. The t...The judgment doesn't address this issue. The thrust of the ruling is that such disputes are a matter of national law. As a whole, EU27 citizens would be better off if the UK stayed.Steve Peershttps://www.blogger.com/profile/05869161329197244113noreply@blogger.comtag:blogger.com,1999:blog-8704899696538705849.post-46071304046511060512018-12-10T02:49:35.752-08:002018-12-10T02:49:35.752-08:00Millions of EU27 nationals have between them lost ...Millions of EU27 nationals have between them lost billions of euros due to the UK's brexit adventure. For our family alone and our business it's into the tens of thousands. If your country now wants to stay in the EU can we sue you for compensation ?David Hembrowhttps://www.blogger.com/profile/14543024940730663645noreply@blogger.comtag:blogger.com,1999:blog-8704899696538705849.post-77146930580106566222018-12-10T02:32:57.125-08:002018-12-10T02:32:57.125-08:00On the genuine nature of a revocation, doesn't...On the genuine nature of a revocation, doesn't seem particularly a question of publicity per se but what is inferable from the facts. As the Advocate General said at para 105 of his Opinion "if, as a result of action carried out in accordance with its constitutional requirements (for example, a referendum, a meaningful vote in Parliament, the holding of general elections which produce an opposing majority, among other cases), the Member State’s initial decision is reversed and the judicial and constitutional basis on which it was sustained subsequently disappears". This rather seems to preclude a government -as a non-genuine negotiating tactic- merely saying it was revoking its notification in the absence of a preceding action of the kind described by AG as sufficient to reverse the initial decision. The full court seems to nod to this at para 66 of the judgement when it speaks of a wish by an MS to reverse a decision "as expressed through its democratic process" which to my mind goes a bit beyond the actual 'constitutional requirements' wording of Art. 50 itself.Michael O'Connorhttps://twitter.com/StrongerInNosnoreply@blogger.com