The phoney war is over. Theresa May has triggered Article 50. The clock is ticking. But clarity and legal certainty remain elusive

Prof Phil Syrpis, Professor of EU Law (University of Bristol Law School)

In her letter to Donald Tusk the Prime Minister outlined the UK’s starting position in negotiations with the EU. The EU Council of Ministers responded by producing draft negotiating guidelines (to be confirmed by the European Council at the end of April). These guidelines create the framework within which negotiations on withdrawal, and those on the future relationship between the UK and the EU, will occur. Meanwhile, a White Paper on the Great Repeal Bill was presented to Parliament, promising on the one hand to repeal the European Communities Act (ECA) and end the supremacy of EU law in the UK, and on the other to convert the acquis communautaire into UK law, so that ‘EU-derived rights’ (as we will need to get used to calling them) will, as far as possible, be unaffected.

The opening exchanges between the UK and EU have generated a lot of comment. Much of it has focused on the unlikely subject of Gibraltar (Michael Howard’s crass evocation of the Falklands conflict will have done nothing to lower simmering tensions). In relation to the White Paper, most attention has been devoted to the role of Parliament and the devolved assemblies. Rather less attention has been paid to many of the EU law aspects. In this short note, I focus on those. I first consider what new light has been shed on the way in which the Article 50 negotiations will proceed, drawing attention to the host of issues which remain unanswered. I then consider the EU law questions raised by the repeal of the ECA, and the conversion of the acquis into UK law. Michael Ford has already commented on this blog on the applicability of judgments of the European Court of Justice in the post-Brexit era; so there is no more on that subject here.

My overarching concern is that the Government, in particular in the White Paper, has failed to provide a clear sense of the size of the task which lies ahead. It is impossible to know whether this is because the Government itself does not appreciate the magnitude of the challenge, or because it is trying to conceal the difficulties. The Government has, for months, struggled to articulate just what Brexit might mean, and has made a series of disparate promises which a range of different constituencies have, if so minded, been able to rely on, or cling to. It will now start making hard choices. It has not prepared the ground well.

Theresa May’s letter set a conciliatory tone, using much more constructive rhetoric than hitherto. She emphasised her desire to build a ‘new deep and special partnership’ with the EU. She expressed the belief that ‘it is necessary to agree the terms of our future relationship alongside those of our withdrawal from the EU’. And she made it clear that the ‘no deal’ scenario is ‘not the outcome which either side should seek’. This is not the tone avid Brexiteers had been expecting.

The EU responded with a draft of the negotiating guidelines which are to ‘define the framework for negotiations under Article 50’ (though note that the European Council, a little ominously, reserves to itself the power to ‘update these guidelines in the course of the negotiations as necessary’). Article 50 does not afford a role to the withdrawing state in the drafting or scope of these guidelines; like them or not, the UK will have to abide by them. The Council repeated ‘its wish to have the UK as a close partner in the future’. But it is immediately clear that the relationship will be very different to the one we have all become used to. In the very first paragraph of the draft guidelines there are references to ‘the integrity of the Single Market’ and to the fact that there ‘can be no “cherry picking”’, and a clear statement that a non-member of the Union ‘cannot have the same rights and enjoy the same benefits as a member’. The guidelines go on to say that withdrawal negotiations ‘will be conducted as a single package’; ‘individual items cannot be settled separately’; and ‘there will be no separate negotiations between individual Member States and the United Kingdom’ on matters pertaining to its withdrawal.

The disagreement relating to the sequencing of the negotiations will be one to watch over the coming weeks and months. Article 50 provides some guidance here, with paragraph 2 providing that the withdrawal agreement with, in this instance, the UK, shall be negotiated and concluded ‘taking account of the framework of its future relationship with the Union’. On the basis of this wording, I have argued that the European Council should have agreed to commit to negotiations with the UK in relation not only about a narrow withdrawal agreement, but also about a broader agreement on the future relationship between the UK and the EU (so that the substantive reality of Brexit is known by the end of the two year negotiating period). The EU has, however, opted for a phased approach to the negotiations, seeking first to ensure that there is an orderly withdrawal. In the light of the wording of Article 50, perhaps reluctantly it has conceded that ‘an overall understanding on the framework for the future relationship could be identified during a second phase of the negotiations’, adding that the EU and its Member States ‘stand ready to engage in preliminary and preparatory discussions to this end in the context of negotiations under Article 50 TEU, as soon as sufficient progress has been made in the first phase’ (see para.4). In this instance it appears as though the UK has the law on its side; but there is little it can do to force the EU to broaden the scope of the negotiations before it is ready to do so. Continue reading

Age discrimination is not in fashion: AG Bobek’s Opinion in Abercrombie & Fitch v Bordonaro

Dr Jule Mulder, University of Bristol

The Facts

The case is concerned with the conformity of Italian law on on-call contracts with the EU principle of non-discrimination on grounds of age. Antonino Bordonaro was employed under an on-call contract (similar to a zero-hour contract) by Abercrombie & Fitch Italia Srl on a permanent basis. Upon his 25th birthday Mr Bordonaro was dismissed due to the fact that he no longer complied with the conditions for the intermittent contract, as laid down by Article 34(2) Legislative Decree No 276/2003 applicable at the time he was hired. The (now repealed) Italian law in question provided special arrangements regarding access to and dismissal from on-call contracts for some workers. While on-call contracts under Italian law are usually subject to objective reasons and certain conditions, the provision allowed for such contract to be offered ‘in any event’ to workers under the age of 25 or above the age of 45. At the time of Mr Bordonaro’s dismissal, Article 34(2) had been modified. The older age bracket was lifted from 45 to 55 years of age. Moreover it was specified that an on-call contract can ‘in any event’ be concluded ‘with a person under 24 years of age, on the understanding […] that the contractual service must be performed before the age of 25 is reached’. The modified provision thus allowed automatic termination of permanent on-call contracts with younger workers once they reached the age of 25, in addition to allowing more flexibility regarding younger and older workers’ exposure to on-call contracts. Unsurprisingly, the Supreme Court of Cassation (Corte Suprema di Cassazione) identified the direct and clear reference to age in Article 34 as potentially problematic and asked the Court of Justice of the European Union (CJEU) to rule on its compatibility with the principle of non-discrimination on grounds of age in Directive 2000/78 and Article 21 of the EU Charter.

The Legal Analysis

Advocate General (AG) Bobek delivered his Opinion on 23 March 2017. In his preliminary observations, he raises interesting questions regarding first, the relationship between Directive 2000/78 and Article 21 EU Charter, and second, in relation to the Charter’s function as an interpretive tool within the context of private law. The question whether the national legislation, the contract and the dismissal of Mr Bordonaro constitute age discrimination is however only discussed with reference to Directive 2000/78. This case comment will focus on the latter, namely the potential direct age discrimination and its justification.

Under Article 2(2)(a) Directive 2000/78 direct age discrimination occurs where one person is treated less favourably than another is, has been or would be treated in a comparable situation because of their age. Regarding the comparability of situations, AG Bobek emphasises that comparable does not mean identical. It rather requires an examination of whether ‘in relation to a given quality (that is, tertium comparationis, which may be a value, aim, action, situation, and so on), the elements of comparison (such as persons, undertakings, products) demonstrate more similarities or more differences’ (para. 40). Such comparison needs to be carried out considering the broader context and in the light of the subject matter and purpose of the act. As Directive 2000/78 focuses on employment and occupation, he then assesses whether workers in different age groups are in a comparable situation in terms of access to employment and dismissal. In particular, he emphasises that ‘the comparability of such different groups of persons would only be precluded if there were an element, such as a personal feature or a factual or legal circumstance, which makes the situations so different that the comparison becomes illogical or unreasonable’ (para. 45). He also rejects that structural and high youth unemployment means that younger workers are in a different situation because their comparability is only assessed considering a ‘number of factors that are relevant for the given quality’ (para. 47). Since all age groups are competent to do the job and apply for the same positions, there is no reason why they should not be offered the same working conditions.

To assess the (un)favourability of the treatment, AG Bobek then refers to the need to conduct a global assessment ‘balancing different elements of the contractual relationship, conditions and considerations’ (para. 64) including the impact of the contract in terms of pay and annual leave as well as access to the employment market. With reference to Mangold (C-144/04, EU:C:2005:709) and Georgiev (C‑250/09, EU:C:2010:699), he considers that the case law indicates that the ‘less favourable character is ascertained through a global assessment of the conditions emanating from the contractual regimes applicable to specific age categories, taking as a point of reference the ordinary employment relations’ (para 66). In these cases the CJEU identified a less favourable treatment because less stable (e.g. fixed-term) contractual relationships with older workers were authorised with no restrictions.

AG Bobek then points at a number of issues that will have to be considered. First, the on-call contracts allow maximum flexibility for the employer while the worker does not have an agreed working time or guaranteed income. Younger and older workers are exposed to this flexibility without the presence of objective reasons justifying the contractual arrangement as required for workers in the intermediate age group. Secondly, while the availability of on-call contracts may offer broader access to the job market, the existence of such contracts without imposing any additional requirements may also make it more difficult for these workers to find regular employment. Finally, the legislative history – the increased upper age limit from 45 to 55 years – and the general character of the provision as a derogation of the general rule indicate that access to these contracts is not always seen as favourable. All of these factors are to be taken into account when the national court makes its global assessment. The assessment should thus neither focus on specific rules alone nor should some negative or positive elements be considered in isolation.

Finally, AG Bobek assesses any possible justification under Article 6(1) Directive 2000/78. The primary aims of Article 34(2) identified by the Italian Government were (1) the flexibilization of the labour market to increase employment, (2) helping young people to access the labour market, and (3) ensuring that young people have opportunities to gain work experience, albeit not in stable employment. All of these aims fall within the remit of Article 6(1)(a) on employment policies, labour market and vocational training. AG Bobek then continues to assess the possible appropriateness and necessity of the measures considering each of the aims. Throughout the analysis, he particularly raises questions regarding the consistency of the measure. For example, the provision only increases flexibility for old and young workers and not for all workers, the provision on automatic termination may cancel out the advantage of labour market access facilitated by the creation of on-call contracts, and the personal scope is not limited to those young workers who require additional experience, education or apprenticeship. The need to consider less intrusive alternative measures is also highlighted.

In conclusion, AG Bobek suggests that the Italian law is only compatible with Article 2(2)(a) and 6(1) Directive 2000/78 if the national court determines that it can be justified under and pursues a legitimate aim linked to employment and labour market policy, and achieves that aim by means which are both appropriate and necessary. Continue reading

Achbita and Bougnaoui: raising more questions than answers

Case Comment: Case C157/15 Samira Achbita and Centrum voor gelijkheid van kansen en voor racismebestrijding v G4S Secure Solutions NV and C-188/15 Asma Bougnaoui Association de défense des droits de l’homme (ADDH) v Micropole SA

Samira Achbita and Asma Bougnaoui were both fired for wearing an Islamic headscarf in the workplace. In its Grand Chamber ruling of March 14th the Court of Justice of the European Union (CJEU) ruled that internal company rules banning the wearing of visible religious, political or philosophical symbols do not constitute direct discrimination on the grounds of religion or belief. It also developed some criteria according to which indirect discrimination can be legitimate and objective.

The case Achbita has already attracted critical attention (see HERE, HERE and HERE). Indeed, it is of great significance. Advocate General Kokott sets out the core question in her Opinion:

“Is a private employer permitted to prohibit a female employee of Muslim faith from wearing a headscarf in the workplace? And is that employer permitted to dismiss her if she refuses to remove the headscarf at work? These are, in essence, the questions which the Court must answer, for the first time in the present case, from the point of view of EU law, and, more specifically, in the light of the prohibition on discrimination based on religion or belief.”(para 1)

Developments with regard to the wearing of religious symbols and clothing are being closely watched across Europe and remain subject to ongoing discussions and political debate. The key question is whether and how this ruling of the CJEU provides a judicial space for employers to ban the wearing of religious symbols in the workplace.

The cases concerned Belgian and French women employees who were fired for wearing an Islamic headscarf. In the case of Achbita the preliminary question referred asked how Article 2(2)(a) 1 and 2 of Employment Framework Directive 2000/78 on equal treatment in employment and occupation must be interpreted. The core question was whether the prohibition on wearing an Islamic headscarf, set out in the general internal rules of a private company, is direct discrimination.

In its assessment, the CJEU found that the internal rules at issue banned all visible religious, political or philosophical symbols and that they applied in the same way to all employers so as to secure a neutral company image. The internal rules were applied without distinction, explicitly prohibiting the wearing of any visible sign of political or philosophical beliefs not just visible signs of religious beliefs. Therefore, the court concluded that the ban at issue could not be regarded as direct discrimination in the sense of Directive 2000/78.

The CJEU however recognised the possibility that such an internal rule could lead to indirect discrimination. This would be the case if the rules were capable of putting individuals of certain religions or beliefs at a particular disadvantage in comparison with other employees. Nonetheless, it held an indirect difference of treatment may be objectively justified by a legitimate aim, provided that the measure at issue is appropriate and necessary for achieving that aim.

In its ruling the CJEU thus concludes that the aim of an employer to present a neutral image towards its clients is legitimate, as long as these rules refer only to employees in direct contact with clients. The CJEU concludes that the national court is to determine if and to what extent the company rules comply with these requirements in practice.

Comment

This ruling is interesting from many points of view.

First of all, the considerable weight given to a company’s desire to promote a neutral appearance seems somewhat curious. It appears to contradict the ECtHR judgment in the case of Eweida and Others v. the United Kingdom where the Strasbourg Court ruled that there had been a violation of the right to freedom of religion or belief when Ms Eweida was not permitted to wear a crucifix at work. The ECtHR in Eweida considered that on one side was Ms Eweida’s desire to manifest her religious belief and on the other was the employer’s wish to project a certain corporate image, and that a fair balance had not been struck. Although the human rights court recognized that the employer’s wish to project a certain corporate image could be regarded as a legitimate aim, it found that the national court accorded it too much weight.

It could be argued that in contrast to Eweida, the ruling of CJEU provides more space for employers to ban the wearing of religious symbols in the workspace without violating the fundamental right to freedom of religion or belief. The ruling could be understood as confirming that the mere wish of a company to present itself in a neutral way is an objective justification for a different treatment of employees .

Second, it is remarkable that the CJEU extensively studies whether the objective is legitimate and the requirement is proportionate but at the same time fails to examine the proper balance between the desire of the employee to manifest her religious belief and the employer’s wish of a neutral workplace environment. On this issue Advocate General Kokott delivered the following opinion in para 127

it is for the referring court to strike a fair balance between the conflicting interests, taking into account all the relevant circumstances of the case, in particular the size and conspicuousness of the religious symbol, the nature of the employee’s activity and the context in which she must perform her activity, as well as the national identity of Belgium“.

The question is whether the omission of the CJEU to examine the said fair balance provides enough guidance to enable national judges to determine whether a company ban on wearing visible religious, political or philosophical symbols, can be regarded as indirect discrimination. Or does it simply push this hot potato onto the plate of the national judges?

Third, it seems curious that in its assessment on whether or not the company’s internal rules can be considered a legitimate aim, the court primarily (maybe even solely?) focuses on the fundamental right of freedom to conduct a business (Article 16 CFR). Why, for example, idoes it not mention the right to work in Article 31(1): Every worker has the right to working conditions which respect his or her … dignity?. It seems that the reasoning of the Grand Chamber, and the way in which it weighs the various relevant elements, remains implicit at best – but perhaps is simply incomplete. This is problematic in such an important case.

In Bougnaoui, the core of the preliminary question was whether Article 4 (2) of Directive 2000/78 must be interpreted as meaning that the preference of a customer to receive services from a company employee who does not wear an Islamic headscarf can be considered a genuine and determining occupational requirement.

The ruling of the CJEU on this question is clear. It concluded that in the absence of any company rule, the mere desire of an employer to take into account the wishes of a customer to ban religious symbols is direct discrimination. Such a ban cannot be regarded as a genuine and determining occupational requirement within the meaning of the Framework Directive.

Various NGO’s have already claimed that the ruling of the CJEU legitimizes discrimination, in particular towards Muslim women. As for now it will depend on the national courts and law-makers to set out the conditions under which an internal company rule can ban religious clothing from the workplace.

Monique Steijns

Monique works within the Dutch Ministry of the Interior as an adviser on constitutional law and human rights. Monique studied law at the University of Amsterdam. She is part of the Netherlands Committee of Jurists for Human Rights and chairperson of the working group Constitutional and Administrative law.

Monique contributes in a personal capacity; the opinions expressed cannot in any way be attributed to the Dutch government.

Law and Politics in the Supreme Court

Phil Syrpis, University of Bristol Law Schoolsyrpis

By a majority of 8 to 3, the Supreme Court held that in light of the terms and effect of the European Communities Act 1972, ‘the prerogative could not be invoked by ministers to justify giving Notice under Article 50… Ministers require the authority of primary legislation before they can take that course’ (para. 101). Within hours, the European Union (Notification of Withdrawal) Bill, authorising the Prime Minister to trigger Article 50, was published. It passed through the House of Commons unscathed yesterday. A White Paper, setting out the Government’s plan for Brexit, such as it is, has also been published.

The purpose of this post is very specific. My aim is not to analyse the judgment, the Bill or the White Paper. That has been done elsewhere. Instead, my aim is to begin to explore the relationship between law and politics, and between Parliament, the executive and the judiciary, taking as a starting point the judgments in the Supreme Court. The judges are, at times, careful not to trespass into the political realm. Nevertheless, their findings are informed and influenced, in a number of ways, by the political context. There are, moreover, important differences between the approaches adopted by the majority and the minority, including differences relating to the judges’ understanding of the legal process of Brexit. It is hoped that inconsistencies between and within the judgments will provoke further academic consideration of the extent to which Courts should intrude into, or take cognisance of, the political realm; and of the extent to which constitutional safeguards are matters of substance or form. But, at this febrile political time, the clearest conclusion is that by failing to answer key questions of law, the Court has done a disservice to Parliament, thereby contributing, not towards the provision of a clear framework within which politicians are able to address the realities of Brexit, but to the pervasive sense of confusion.

Continue reading

Miller – A Decision in Defence of the UK Constitution

Prof Iyiola SolankeBlogPhoto

The UKSC has spoken. And as many had expected (perhaps in their more sanguine moments even the Government legal team) it has upheld the decision of the High Court that legislation is required prior to the triggering of Article 50 TEU. The judgement should become compulsory reading in Constitutional Law, especially because it sets out clearly the separation of powers between the government and parliament, in particular the law making powers of each and most significantly the reach of those laws made using institution specific law-making powers.

The UKSC remind that the basis of the prerogative power asserted by the government is in the principle of dualism – that international law and domestic law operate in independent spheres [55]. Thus although treaties signed under international  law are binding on the UK in international law, such treaties are not part of UK law and give rise to no legal rights or obligations in domestic law. Therefore just as treaties made by Ministers are not governed by domestic law, domestic law made to give national effect to those treaties cannot be governed by Ministers. As put in JH Rayner by Lord Oliver of Aylmerton:

“As a matter of the constitutional law of the United Kingdom, the Royal Prerogative, whilst it embraces the making of treaties, does not extend to altering the law or conferring rights upon individuals or depriving individuals of rights which they enjoy in domestic law without the intervention of Parliament. Treaties, as it is sometimes expressed, are not self-executing. Quite simply, a treaty is not part of English law unless and until it has been incorporated into the law by legislation…” [56].

Hence, as put by the UKSC ‘…the dualist system is a necessary corollary of Parliamentary sovereignty, or, to put the point another way, it exists to protect Parliament not ministers’ [57]. In coming to this conclusion the UKSC should be seen not as ‘enemies of the people’ but on the contrary their friends: by protecting parliament, they also protect the people, ensuring that governments do not undermine the citizenry by imposing decisions upon them which have not been put before them or their representatives (ie Parliament). This may be of especial resonance to the 28% who did not use their vote in the EU referendum.

The ECA 1972, passed by Parliament to incorporate the Treaty of Rome into domestic law, is uncontroversially described as more than an ordinary statute. This assertion of the constitutional character of the 1972 Act is not new – it was set out in Thoburn and R (Buckinghamshire County Council) v Secretary of State for Transport. Importantly, the Court highlights the crucial distinction in relation to its dual impact – first it provided that ‘rights, duties and rules derived from EU law should apply in the United Kingdom as part of its domestic law’ and secondly created a ‘new constitutional process for making law in the United Kingdom.’ The former is described as ‘exclusively a question of EU law’; the latter ‘exclusively a question of domestic law’ [62].

From here it requires only reiteration of traditional reasoning to conclude that oversight over the domestic constitutional process remains with Parliament not government. As such, Parliament can legislate to alter the domestic constitutional process, the status of EU institutions or even the status EU law. This is not constrained by the primacy of EU law, or any rule of EU law because this is a question of the domestic constitution for Parliament. Parliamentary sovereignty is in 2017 as it was in 1972 and ‘…EU law can only enjoy a status in domestic law which that principle allows. It will therefore have that status only for as long as the 1972 Act continues to apply, and that, of course, can only be a matter for Parliament’ [67].

Thus just as Parliament decided in the 20th century when the Treaty of Rome should have domestic impact, it is for Parliament to decide in the 21st century when that ceases to apply; then as now this remains a question for Parliament, not the Government. The Court rejects the argument asserting that the 1972 Act foresees use of prerogative powers – without prior Parliamentary authorisation – to break the constitutional legal tie made by Parliament between EU law and the UK. On the contrary, it concludes that,

“… by the 1972 Act, Parliament endorsed and gave effect to the United Kingdom’s membership of what is now the European Union under the EU Treaties in a way which is inconsistent with the future exercise by ministers of any prerogative power to withdraw from such Treaties.”

Given the long-standing principle of parliamentary sovereignty, one may again wonder why the EU referendum was necessary. The judgment can be read as adding weight to assertions that the EU referendum was a response to party political and not national interests.

To refer or not to refer, that is the question…

BlogPhotoDr Iyiola Solanke

A journey is a good time to gather thoughts and reflect. Having nothing to do but sit and watch the fields go by offers an opportunity for quiet reflection and deliberation. Such stillness should not be expected by the judges of the Supreme Court as they journey through the British constitution in the coming weeks – the headlines of the weekend papers make clear that their deliberations on the Miller case will not be set within a context of calm.

This is to be regretted, for the questions facing the Supreme Court are of a magnitude that cannot be overstated. They are of long term importance not only for the relationship between the UK and the EU but also internally, for democracy the UK. As important as the decision reached by the Court – whether the government must consult Parliament before art 50 is triggered – is the procedure by which that decision is reached, namely whether the Supreme Court uses Art 267 TFEU to refer a question of interpretation to the CJEU in Luxembourg.

Art 267 TFEU

Article 267 TFEU sets out the procedure whereby national judges can send questions[1] to the CJEU for interpretation of the Treaty and adopted secondary law, and the validity of the latter. The questions sent can concern technical matters such as the classification of pyjamas[2] or constitutional issues dealing with EU citizenship[3] or the validity of the European Stability Mechanism.[4]

Art 267 TFEU states that:

 (1) The Court of Justice shall have jurisdiction to give preliminary rulings concerning: (a) the interpretation of this Treaty b) the validity and interpretation of acts of the Institutions (2) Where such a question is raised before a court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court of Justice to give a ruling thereon. (3) Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law that court or tribunal shall bring the matter before the Court of Justice.

There is no time limit associated with the procedure: the question(s) can be sent as soon as need becomes apparent to national court/ tribunal.[5] However, this is not an appellate procedure: questions must relate to a pending dispute and be sent before a decision has been made.[6] There is no limit to the number of questions that may be in a reference,[7] or the number of references that a court can make prior to its decision, as long as these are new questions or might produce a different answer.[8] The CJ may also add to the questions sent.[9]

There is no definition in the Treaty of a ‘court or tribunal’. The guidance laid out in El Yassini[10] stressed a number of factors, such as whether the ‘body is established by law, whether it is permanent, whether its jurisdiction is compulsory,[11] whether its procedure is inter partes, whether it applies rules of law and whether it is independent.’ However, even if a body satisfies all of these characteristics, it will not be seen as a court or tribunal unless it is required to determine a legal dispute or exercise a judicial function[12] and falls within the remit of a member state.[13]

Given its status as the Supreme Court, a question on Article 50 sent under Article 267 is unlikely to be rejected. However, given the political consequences of the question, it may not be warmly welcomed by the CJEU. Yet this would be the legally correct course of action under EU law – this is the very first time that Article 50 has been considered in any national court in the EU, and there are important questions surrounding its interpretation, in particular whether it is revocable. This issue is especially important as in Miller, the irrevocability of Article 50 played a central role in the case before the High Court: there it was held that an irrevocable Article 50 makes the need for Parliamentary involvement in its triggering crucial. However, if Article 50 is revocable, this may lead to a different conclusion. The question on revocability is thus a question of the interpretation of EU law that should be put to the CJEU under Article 267. As it is a provision of EU law, only the CJEU may interpret it.

Division of Labour

Article 267 sets out a clear division of labour: the national court determines the questions that its needs answered, the CJEU answer those questions on EU law; the national court applies this interpretation to the facts before it. The CJEU may determine admissibility but the process is driven by the national courts – it is left to the discretion of the individual judge to decide whether or when a reference should be sent, what should be asked[14] and how the interpretation should be applied. The opportunity for the CJEU to tackle important questions such as the revocability of Article 50 can be compromised in the absence of referrals.

The Treaty states that courts of last instance must refer[15] yet some such courts refuse to comply.[16] A judge may ignore a request to refer,[17] agree[18] or refuse as in Mid Sussex Advice Bureau where Elias LJ believed that a referral asking whether a volunteer was a ‘worker’ who could access rights in the Disability Discrimination Act 1995[19] when read with the Framework Directive[20] would fail.[21] Alternatively a judge may decide not to refer because they can interpret the issue adequately themselves[22] or to avoid delay.[23]

Delay is inevitable – an average reference can take over one year to be addressed. Time is clearly of the essence in the Miller case so this is a practical reason for non-referral. As Miller does not concern a person in custody, the procedure préjudicielle d’urgence (PPU)[24] in Article 267(4) TFEU cannot be used. This is a shame because the PPU removes stages found in the ordinary procedure thus can reduce the time for a reference to as little as 2 months.[25] However, given the constitutional importance of the question – for both the UK and the EU – it is likely that the CJEU will deal with the question of revocability quickly. Continue reading

Causes, Aftermath, and Future: The Three Stages of Brexit

Jo Eric Kushahl Murkens*

A friend of mine, who is French and lives in London, returned from holiday the day after the referendum. In an email to me, she wondered why she had bothered: she felt as though her home had been “vandalised” by half the people in the country. Most people I spoke to reported feelings of anger, shock, and disbelief in the immediate aftermath. These strong emotional reactions were entirely understandable given that their future right to work and live in the UK as EU citizens had just been put into question.

On second thoughts, however, why were we shocked? The Brexiters had run a very effective campaign, with slogans along the lines of “We want our country back” and “Let’s take back control”. The Remain camp had no response to this. David Cameron and George Osborne were simply not the right people to remind voters of this straightforward fact: it was not uncontrolled immigration from the EU that was responsible for the decline in public services throughout the country, but the austerity politics driven by Conservative Party ideology since 2010. The Brexiters had won the campaign effortlessly.

More importantly, we are not talking about mendacities, myths, and misinformation that were spread over the course of a two-month long referendum campaign. We are talking about the wilful and sustained distortion of the European project by British politicians and journalists from the very beginning, and especially since the date of accession in 1973. Could a referendum on EU membership ever have been won in the last 20 years, I ask myself? And should we not be positively surprised that almost half the British voters elected to remain in the EU?

Anger and irritation soon gave way to analysis and interpretation. The referendum was clearly not about the European Union. It revealed something significant about the United Kingdom. The United Kingdom was not unanimous, but split down the middle: Scotland and Northern Ireland voted to remain, England and Wales voted to leave. The two main political parties were not putting forward helpful proposals regarding Britain’s future relationship, but were in open meltdown over the Europe question. Embarrassingly, Britain had once again set itself up to fail over a serious policy choice. In 2003, Britain went to war upon the basis of unreliable information and without an exit strategy. In 2016, it conducted a referendum upon the basis of false promises and without a Brexit strategy. This is not a good time to be British, and it certainly is not a good time for Britain.

Constitutional analysis proved to be my pathway to hope and optimism. There is no way the UK can withdraw from the EU and expect to survive politically. European law is woven into the Belfast Agreement of 1998, which stands testament to a rare and recent British diplomatic achievement. It has brought peace to Northern Ireland and improved the relations between the Republic of Ireland and the UK. It is, of course, possible for the UK to leave the EU. But to begin that process without second thoughts for the Irish peace process is borderline criminal. Something similar needs to be said in relation to Scotland. The governing SNP have been quietly waiting for an excuse to hold a second independence referendum, and David Cameron has single-handedly given them a reason.

Few countries display much enthusiasm for the European Union. British people are certainly amongst the least knowledgeable in this respect. Ignorance about European institutions is one matter, but ignorance about one’s own constitution (and yes, the UK has a constitution) is unforgivable. At the very least, the 52 per cent should stop claiming that their slim majority should in any way be decisive.

As a state, the UK is neither centralised nor unified. It is de-centralised and fragmented. Scotland and Northern Ireland reveal the UK constitution at its most fragile. The new Prime Minister will need to tread very carefully. So far, only the homes of the 48 per cent have been vandalised. Pretty soon the UK, the home of 100 per cent, could cease to exist. No one voted for that in June 2016.

* This essay is from a Working Paper of the European University Institute, Department of Law, entitled “Brexit and Academic Citizenship” (LAW 2016.20, San Domenico di Fiesole 2016, available at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2871428). The paper, edited by Christian Joerges, collects a series of personal reflections on the outcome of the Brexit referendum. The essays do not engage with the legal and constitutional issues that arise from this event – these aspects have received comment elsewhere. Rather, the editor has solicited personal reflections from a group whose scholarly journey included the European University Institute, a hub for transforming, and integrating Europe. Aware of this privileged position, the authors shed light on how the result of the referendum and its aftermath may impact on the UK and the European Union.

Brexit, Post-Truth Politics and the Triumph of a Messy Vision of Democracy over Technocracy

Sandra Marco Colino*

As I watched the last US presidential debate of the 2016 election live over breakfast a few weeks ago, I recalled the last time I had spent an entire morning glued to the television screen watching political developments unfold. It was on 24 June, when the results of the referendum on the UK’s membership of the European Union were announced live on the BBC (a perk of living in Hong Kong and being 7 hours ahead of the UK is that I can watch British election results in real time without having to pull an all-nighter). It was 11:40 am here when David Dimbleby confirmed what felt like the “chronicle of a death foretold” soon after the vote counts began to trickle in: the UK had chosen to leave the EU.

The news refused to sink in, even as I stared at the headline flashing across the screen. The outcome had a much more intense emotional impact on me than I had anticipated. On Brexit, I am both biased and non-biased: biased, as a Spaniard brought up in the UK, who has extensively exercised her rights as an EU citizen; and non-biased, for having made a career and a profession of the study of EU law for over two decades. And in my two capacities, my feelings were unanimous: my heart said remain, and my head said remain. More accurately, my head said “remain and revolt”, as I believe that the UK could have used its solid position within the EU to push for a superior process of integration. But remain nonetheless.

I have undoubtedly been shaped both as an individual and as a professional by the opportunities offered to me by my UK residency. My family moved to London when I was just 11 years old. Since then, I have spent a total of 12 crucial years living in Britain. My first job was at the University of Glasgow. Although I have retained my Spanish nationality and citizenship, and the UK may not be part of my DNA, it is most certainly a vital part of my inner fabric, and I deeply care about the country’s future, whether in or out of the EU. But equally important, I am an EU national, and I have extensively taken advantage of the myriad of privileges that this entails. I am one of the 3 million undergraduate students who have experienced what it is like to live and study in another European country (in my case, Germany) thanks to the EU’s Erasmus university exchange programme. I wrote my Ph.D. at the European University Institute in Florence with a grant partly funded by the EU. I have been a trainee at the European Commission, where I had the chance to witness EU law enforcement and policy-making as it happened. I have extensively exercised my free movement rights, having resided and/or worked in six different EU Member States. As a female and as an employee, I have benefited from gender equality protection and working conditions guaranteed by EU law. Unsurprisingly, I find it regrettable that the continuity of all of these life-changing benefits has now been compromised for UK citizens. The result of the referendum is often portrayed as a popular uprising against technocracy and élitism. However, it is unclear whether the potential loss of such privileges, even if seemingly by the will of the beneficiaries, is really a win for the British people or more of an own goal. The idea that citizens’ rights would be at the forefront of the concerns when deciding to call for a nationwide reflection on EU membership is debatable. After all, the referendum was propelled by the same political leadership that put a heavy price tag on tertiary education in some parts of the country; the very one that has pushed Britain into an age of austerity and growing inequality which the United Nations recently declared to be in breach of international human rights.

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A World After Brexit?

Michelle Everson*

Brexit has befallen us. The world is a very different place, especially on the streets of London, where the sense of disbelief is palpable, and the insecurity (even fear) is tangible, as our so recently lived-dream of non-national, culturally-disregarding, globally-cosmopolitan community finds itself under a very present threat. Yet, life goes on and, barring any further surprises, the academic world must begin to deal with the consequences of Brexit, both with regard to retrospective explanation, and with a view to opening up perspectives for the world to come.

Citizenship in Movement

“[I]t would be neither satisfactory nor true to the development of the case law to reduce freedom of movement to a mere standard of promotion of trade between member states. It is important that the freedoms of movement fit into the broader framework of the objectives of the internal market and European citizenship. At present, freedoms of movement must be understood to be one of the essential elements of the ‘fundamental status of nationals of the member states’. They represent the cross-border dimension of the economic and social status conferred on European citizens.”

[Opinion of AG Poiares Maduro in Cases C-158 & 159/04, Alfa Vita Vassilopoulos AE v Greece, 2006 E.C.R. I-8135, paragraph 192.]

In my world of (economic and constitutional) European Law, it has long been an unthinking commonplace that the legal freedoms of the Single Market coalesce seamlessly with and reinforce the character of the individual living across the space of Europe, as a European Citizen; a citizen who is made so, by virtue of their movement within, or as an ancillary to the European market. This blind collapse of the civic and social into the economic is, nevertheless, a far more incendiary one than the dry formulations of an Advocate General of the European Court of Justice might anticipate.

Writing in the European Law Review in 2004, Hans Lindahl sought to remind European lawyers of the continuing currency of boundaries and barriers to movement in notions of exclusionary belonging, of the on-going relevance of Hannah Arendt’s concept of “spatiality”. Investigating the consequences of an emergent European “securitisation” discourse, Lindahl noted that spatiality is:

“[N]ot merely a geographical term. It relates not so much, and not primarily, to a piece of land as to the space between individuals in a group whose members are bound to, and at the same time separated and protected from each other by all kinds of relationships, based on a common language, religion, a common history, customs, and laws.”

 For all of its roots in a putative act of post-national liberal constitution, the old European continent was and is still prey to pre-political expressions of belonging; a communitarian impulse, then silently evinced in the binary distinction between those who were and those who were not “legally-resident” within the European space, and now explicitly re-asserted within myriad acts of individual brutality in the holding camps of Turkey and of Greece – our new EU colonial “protectorate”. Neither Libyans, Ghanaians, Congolese nor Pakistanis, it seems, may simply seek their citizenship within the movements of the European market.

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Thinking Personally about Brexit

Mark Dawson*

I entered the EUI in 2005 as one of a dozen or so researchers from the UK. A running joke at the time was to do a quick round of the Mensa, or refectory, staring at tables of French sitting with French, German with German, Greek with Greek, etc., and remark what a success European academic integration had been! The broader truth, though, was that this was real integration – not just of chemicals and Cassis de Dijon, but of friends of all nationalities – sharing ideas, sharing drinks (and, of course, rather often sharing beds, too). It was an integration of peoples.

It is little surprise that those of us in the UK who returned to our home countries or filtered off elsewhere in Europe and the world were normally committed europhiles, even if we often pretended otherwise to ourselves. We had experienced what Neil Fligstein dubbed the “Euroclash” in person: we were the privileged, mobile few for whom the EU had provided four years of quiet reflection and good food in paradise. We also faced the shock of following UK politics from afar, or experiencing it in reality once home. For us, the EU was part and parcel of who we were. For our fellow Britons, it was a foreign entity. This identity clash explains part of what I can imagine is a common feeling among many contributors to this publication: the UK’s very rejection of integration makes it a somewhat foreign entity for me now too.

The integration of people had simply not occurred. Britons ventured abroad but often simply to buy flats in UK bubbles in the Costa del Sol, or to be a part of a different trans-national project – the vestiges of the old Commonwealth that offered the promise of freedom and prosperity not in Berlin but in Brisbane. Meanwhile, those who came to British shores were rather too easily cast as outsiders (people who were here as part of a market, to cash-in, rather than to contribute to society). This was not free movement but “economic migration”; it was not a reciprocal exercise but the entry of outsiders on the take (for “our jobs”, “our benefits”, and “our homes”). The reaction recalls the debate over gay rights a decade ago – one’s affinity to the cause was often not determined by political, but by personal affiliation: Do you know someone who is gay and are you able to step into their shoes? (hence, the priority of coming out to the LGBTQ movement). Too few people had a stake in the EU project, and too few were able to identify with those who did. Too few could make it onto that Tuscan hill with us.

Surely, the question that Brexit poses to all of us committed to, or simply interested in, the EU is how to build that stake. How does the EU become something that can be defended not just at the level of trade statistics, but as a personal and political project? One has the feeling that, without this connection, without a sense of commitment to Europeanism, however thin, the EU has no hope of facing down the next catastrophe. The dis-integration of the Union is not, in this sense, a question of self-interest and preferences – if it were, the people of the UK (already enjoying a cherry-picked version of integration) would have been easily bought over – but a question of whether people perceive Europe as being a part of the “self” that defines their interests.

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