The week that was

Dr Iyiola Solanke

For the first time since sending the Article 50 Letter, the Prime Minister met with European Council President Tusk in what was described as a positive meeting where it was agreed to de-escalate the row over Gibraltar.

Wider response to the activation of Article 50 has been dismissive. In Germany, a Bundestag debate about Brexit was hardly reported. In the European Parliament, EP President Verhofstadt described Brexit as a “catfight in the Conservative party that got out of hand – a loss of time, a waste of energy and a stupidity.” Unity and the future of the 27 remaining member states was stressed as the EP endorsed the European Council draft negotiation guidelines.

The Commission launched its Brexit website – this lays out the organization of the Taskforce that will conduct negotiations with the UK. General enquiries about the work of the taskforce can be sent to tf50-contact@ec.europa.eu. Head of the EU Taskforce, Michel Barnier, presented his three pre-conditions for a Withdrawal Agreement – unity of the 27, removal of uncertainty and finally ‘doing things in the right order and putting them into perspective’ ie. agreeing the exit before the future relationship. In an interview during her trip to Jordan, Theresa May confirmed this, saying that a final trade deal between the UK and the EU will only take place after the UK has left and is a non-EU country. Thus within the first seven days of Brexit, the UK retreated from key aspects of its negotiating position. All seem agreed however that negotiations must be completed by March 29 2019.

May’s claim that “no deal is better than a bad deal” was also challenged by the Parliamentary Brexit Committee. It published a Report which asked for an impact assessment of what the economic fallout would be. It seems that the Treasury has not carried out a detailed economic forecast of Britain’s Brexit options since the referendum. Regardless, the Government has agreed to underwrite Erasmus+ programme contracts signed while the UK is still in the EU. Beyond 29 March 2019 is uncertain – UK participation in the programme may continue subject to negotiation between the Government and the EU.

Finally, don’t be surprised if there are delays at some borders: EU plans to start border checks on everybody entering and leaving the EU came into force on April 7. Now EU and non-EU citizens will be checked in a bid to increase security. EU Commissioner for Security, Julian King, is also pushing for the introduction of a fingerprint identification service for inclusion in the increasingly used Schengen Information System – 4 billion queries were made to SIS in 2016, a 40% increase from 2015.

From the CJEU:

Competition Law: AG Opinion in Case C-671/15 President of the Autorité de la concurrence v Association des producteurs vendeurs d’endives (APVE) and Others

Agricultural producer organisations and their associations may be held liable for agreements, decisions or concerted practices contrary to EU competition law. That is the case, in particular, where concertation on prices or on the quantities placed on the market and exchanges of information occur between several (associations of) producer organisations or between such bodies and other types of operators on the market.

Area of Freedom, Security and Justice: Case C-544/15 Sahar Fahimian v Germany

National authorities may refuse, for reasons of public security, to grant a visa for study in a sensitive field – such as information technology security – to an Iranian national with a degree from a university subject to restrictive measures. Although the national authorities enjoy a wide discretion determining the existence of a threat to public security, the decision to refuse a visa must state proper reasons.

The week that was

In between the celebrations for 60th Anniversary of the Treaty of Rome and April Fool’s day, Day 1 of Britain’s exit from the EU began. On March 29th Sir Tim Barrow was despatched with a 6-page letter from Downing Street , which was ceremoniously handed over in front of the worlds cameras as he shook hands with European Council President Donald Tusk. The picture inevitably made front page news but in contrast to the media, markets failed to react either positively or negatively making Day 1 strangely anti-climactic – in effect more of a whimper rather than a bang. Nonetheless, the countdown has begun.

Day 2 brought a swift EU response in the form of Brexit Negotiating Guidelines. Despite expressing the deep regret that Brexit will now happen by March 29th  2019, the EU repeated its resolve to act as one. It set out core principles which also made clear that Britain’s desire for a UK-EU relationship of bits and pieces was delusional. Two phases for negotiation are set out: Phase 1 will focus on ‘disentanglement’, including consideration of the so-called ‘Divorce Bill’; Phase 2 will only begin when according to the European Council ‘sufficient progress’ has been made on Phase 1. Phase 2 of negotiations will include discussions only on the ‘overall understanding on the framework’ for the future relationship.  In another blow to Government plans, the Guidelines state that agreement on a future relationship can only be concluded when the UK becomes a ‘third country’ – work towards a free trade agreement can only begin once the UK is no longer a Member State of the EU. An LSE-Briefing Paper by Damian  Chalmers gives a clear overview of the challenges facing the Government negotiators.

Transitional arrangements can be considered, but it is unclear in which phase. What is clear is that during any transitional phase prolonging the EU acquis all Union regulatory, budgetary, supervisory and enforcement instruments and structures will continue to apply. However, transitional arrangements cannot provide a shelter for trade talks – as explained above, if this means that the UK remains a Member State, movement towards a free trade agreement with EU will be stalled. A transition period may therefore prove a hurdle to the conclusion of a free trade agreement or any future partnership in areas such as security and defence, terrorism, international crime. Transition is not the only hurdle – the EU has linked the application of any agreement between the UK and the EU in Gibraltar to a prior agreement between the UK and Spain. It is clear what lies behind this: 96% of residents on the Rock voted to remain in the EU. Nicola Sturgeon must be green with envy – the SNP would no doubt also welcome such protection.

The EU is also clear that the future partnership must include enforcement and dispute settlement mechanisms that do not affect the Unions autonomy – there can be no doubt since Opinion 2/13 on EU accession to the ECHR how jealously the CJEU will also guard its own powers. Thus it is hard to see how the UK can square this with its statement in the White Paper, published on Day 3, that the jurisdiction of the CJEU in the UK will end when we leave the EU. Unless, of course, it plans to leave the EU without any agreement.

Day 3 saw the publication a White Paper on Legislating for the UK’s Withdrawal from the EU. The centrepiece of this is a ‘Great Repeal Bill’, setting out the government’s vision of legislating for withdrawal from the EU. The plan for the Great Repeal Bill is to provide for ‘minor changes’ – it will repeal the ECA 1972 and incorporate wholesale the EU acquis communitaire (the Treaties but not the Charter, EU Regulations and Directives including implementing and delegated Regulations and Directives, and all CJEU case law) into UK law, convert EU Regulations into domestic law (these will be known as EU-derived law) and finally create limited discretionary powers for creation of secondary legislation. This secondary legislation will enable necessary ‘corrections’ to laws that would not function properly outside of the EU. In order to have the power to make these corrections, the Bill proposes the introduction of a so-called ‘Henry VIII clause,’ although this may cause significant problems according to Lord Neuberger.

It is questionable whether all this amounts to a ‘minor change’. It seems that the ‘Great Repeal Bill’ will create more in UK law than it repeals. By March 2019, and for an undefined period of time there will be two sets of laws: UK law and ‘EU-derived law’ both of which will remain relevant until repealed. Repeal, conversion, and correction to fill gaps in EU derived laws will be an ongoing process. While the use of Henry VIII powers is defended as necessary to provide legal certainty, the Bill envisages that there will be flux and constant change. Thus the law may change more than once during the process as negotiations continue.

The CJEU is specifically mentioned: while according to the Bill the jurisdiction of the CJEU in the UK will end, its case law will live on in EU-derived law: the White paper states that

‘as long as EU-derived law remains on the UK statute book, it is essential that there is a common understanding of what that law means…To maximise certainty, therefore, the Bill will provide that any question as to the meaning of EU-derived law will be determined in the UK courts be reference to the CJEU’s case law as it exists on the day we leave the EU…the Bill will provide that historic CJEU case law be given the same binding, or precedent, status in our courts as decision of our own Supreme Court’ (Paras 2.14 & 2.16)

EU law decided until March 29 2019 will therefore continue to influence law in the UK. Continue reading

The week that was

The week that saw the 10th anniversary of the European Research Council, began with the renewed demand by the First Minister of Scotland, Nicola Sturgeon, that Scotland have a chance to vote on whether it leaves the UK before the UK leaves the EU. This would be at some point between Autumn 2018 and Spring 2019. Her demand was immediately rebuffed by Teresa May, who condemned the move as the wrong policy at the wrong time, and committed herself to holding together this ‘precious, precious Union.’

As Stormont rose, the Lords retreated – having seen their two amendments on EU workers and a meaningful vote rejected by an increased majority, they allowed the 2 paragraph Brexit Bill to pass into law un-amended. Teresa May now has the power to begin Brexit talks and many expected Article 50 to be triggered by Tuesday but this did not happen, perhaps due to the storm brewing in Stormont, or the worry caused by Wilders in the Netherlands. The latter was resolved when Dutch voters rejected his racist and xenophobic vision for their country; it remains to be seen if and how Scottish voters will respond to the SNP.

The week also brought a visual manifestation of the chilly relations between the EU and the USA. Due to bad weather on Tuesday, the meeting between Merkel and Trump was postponed to Friday. Merkel may have been present as the German Chancellor but is widely seen as the leader of the free world and the voice of the EU. The body language at their press conference said it all, but in case of any doubt, there was then the so-called ‘Merkel Moment’.

John Major re-launched his condemnation of Leave campaigners saying “It was dishonest and wrong to promise the British people an easy, favourable deal with the EU, wrong to promise swift new trade deals, and wrong to state that the Irish peace process would not be unsettled by Brexit.” He dismissed claims that Britain could thrive under WTO rules, warning that 90% of UK exports to the EU would become more expensive, with tariffs that would add about £6bn to their costs.

Officials from the Department for International Trade may agree with him, which is why a Brexit Plan B is being discretely drawn up. They are investigating whether the UK can invoke the rarely–used Article 24 of the WTO Treaty. This would allow the U.K. and Brussels a “reasonable length of time” after Brexit to agree a transitional free-trade deal before WTO law forces both sides to impose the same tariffs on each other as they do on everybody else. Such an interim deal would avoid a ‘hard Brexit’ in March 2019 by keeping tariffs at zero when the UK leaves the Single Market.

Major also condemned the ‘fake facts and bogus promises’ spread by the Brexiters. Indeed far from the promised infusion of an extra 350 million per week,  the NHS is becoming de-staffed and de-skilled: nurses are leaving and not being replaced. Many of the 55,000 doctors and nurses in the NHS from the EU have felt unwelcome after the EU referendum and are now leaving. Simultaneously, new registrations of EU nationals as nurses in England have dropped by 92% since June 2016.

Given the departure of health-care experts, it is some comfort that the EU’s Rapid Alert System for dangerous products seems to be functioning well. According to the report for 2016, national authorities removed more dangerous products from stores and in response to increased e-commerce, the Commission has increased cooperation with Amazon, Ebay and Alibaba to tackle potentially dangerous products, such as toys, sold online. The Commission also continues to plan for the 60th celebrations of the EU on March 25th where the White Paper, presented by the European Commission setting out the vision of the 27 for the future of Europe after Brexit, will be debated. Continue reading

News round-up

This week, John Major’s reality check on Brexit annoyed the Tories, but not as much as the House of Lords. In the biggest upset of her plans to date, Teresa May has had to face the defeat of her Bill in the House of Lords, where peers overwhelmingly supported a Labour amendment to secure the rights of the 3.6 million EU citizens living in the UK. Losing a vote during the committee stage in the House of Lords means the Brexit bill will enter a so-called ping pong between the Houses of Commons and Lords, potentially delaying its passage into law. Applications for permanent residency have risen, as has the cost and difficulty in gaining this. Home Secretary Amber Rudd confirms that the current right to travel and work in different EU countries will not remain when Britain leaves the EU and March 15 has been mentioned as a cut-off date for full rights of residence. Rudd this week also authorized the use of stronger tasers by the police.

The confident words emanating from Downing Street that concessions would not be made may be tempered by the news that peers also plan to reject May’s threat to walk away if EU leaders offer only a ‘bad deal”, leaving Britain out of the EU and dependent for its international trade relations on World Trade Organisation (WTO) rules. Gina Miller has also warned of further legal proceedings if Parliament is not guaranteed a meaningful vote on leaving the EU. The question remains as to whether rejecting a deal is the prerogative of the UK – Art 50 (3) TEU does not preclude the EU from walking away from the table. It is indeed questionable whether there is a choice – Art 50 says nothing about whether either party can continue negotiations after two years in the absence of formal unanimous agreement for an extension of talks.

Another week, another Le Pen scandal: MEPs voted to remove parliamentary immunity from Marine Le Pen, leaving her open to prosecution. The EP has also thrown the gauntlet down to the USA – in response to US travel restrictions on five EU member states, MEPs encouraged the Commission to impose visa restrictions on travellers from the USA visiting the EU. Continue reading

Brexit Round-Up

On Friday 17th February, Tony Blair, launched his campaign for Bremain, declaring it his “mission” to persuade Britons to “rise up” and change their minds on Brexit and find  “a way out from the present rush over the cliff’s edge”. Speaking in the City of London, the former prime minister claimed that people voted in the referendum “without knowledge of the true terms of Brexit”. Debate continues to rage over the true cost of Brexit, as a result of Camerons commitment to fund the whole current EU spending cycle from 2014 to 2020. The time lag between commitment and expenditure – the “Reste à Liquider” (RAL) – may see Britain making payments to Brussels until at least 2023. The true costs of the referendum are now coming to light, as the Electoral Commission declares it the most expensive referendum in British political history.

This week also saw the start of the journey of the Brexit Bill through the House of Lords under the steely, somewhat sneering gaze of the Prime Minister and a warning that Britain will be plunged into its biggest turmoil in over a century if peers attempt to thwart Brexit’.  The attempt to intimidate was lost on Liberal Democrat Baroness Kramer who called for voters to have “the final word” on the Brexit deal in a referendum.

Stephen Sedley commented on the curious language used in the Brexit Bill, calling the ‘petulant and ungrammatical wording, alongside the use of an acronym rather than the name of the European Union’ a ‘curiosity’ that raised the question of whether the Bill ‘was copied from the back of a ministerial envelope.’ He also agrees with those who think that the CJEU may yet have to determine whether Article 50 TFEU once triggered can be revoked:

‘…if, after two years of negotiation, no acceptable deal has been reached with the other member states, either the prime minister’s notice under Article 50 will expire and our membership of the EU will lapse with no deal in place, or the notice will have to be extended or withdrawn. Who has authority to decide whether this can be done? The Court of Justice of the European Union, that’s who.’

Businesses begin to make Brexit plans – Barclays Bank announced an expansion of operations in Ireland and Germany, although apparently the bulk of operations will stay in London after Brexit even if the UK loses access to the single market. Farmers also delivered a warning over the consequence of losing EU seasonal workers: according to figures released this week, more than 100,000 EU citizens left Britain in the three months after the EU referendum. New worker registrations from Poland, Hungary and Slovakia are down from 16% – 20% prompting fears of a recruitment crisis.

Meanwhile, fraud investigations spread from the father to the daughter: this week French police raided the FN Headquarters of Marine Le Pen as part of an official investigation into “fake” jobs involving the misuse of European Union funds to pay for a bodyguard and an assistant in Paris. OLAF has demanded that she repay €340,000 and in the face of her refusal, is currently deducting this from her MEP’s salary.

Finally, as Labour clung onto Stoke and the Conservatives took Copeland, questions have been raised concerning the future of UKIP – having lost ‘Brexit capital’ is UKIP now a spent force? In Stoke, UKIP finished more than 12 points behind Labour. Can the end of the insurgency party in the UK fortell the end of the insurgent in the White House? Continue reading

Brexit Round-Up

From the News:

A week on from the rendition of Ode to Joy by SNP Parliamentarians in Westminster in response to the Brexit White Paper, the Speaker of the House, Mr John Bercow, finds himself in hot water for exercising his own freedom of speech.

Calls for his resignation have drowned out the perhaps more significant news that as far as the EU is concerned, the UK will not be able to negotiate its exit and future relationship with the EU concurrently and while the latter proceed, the UK will remain under the jurisdiction of the CJEU.

The Supreme Court finally responds to the media attacks on the judiciary during the Miller case: Lord Neuberger said in an interview on BBC Radio 4 that politicians were too slow to defend judges after Brexit case, especially as the vitriol aimed at judges ‘undermined rule of law.’

The division of the Supreme Court in Miller was perhaps not as surprising as its unanimity on the devolution questions. Eutopialaw’s own Aidan O’Neill considers the potentially disastrous consequences of this aspect of the decision for the UK in an article here.

While Article 50 has not yet been triggered, a report from the CIPD and The Adecco Group finds that labour and skills shortages are already appearing in sectors of the UK economy that employ a high number of EU nationals.

Trade integration continues under the shadow of Brexit: a day after MEPs approve CETA (Comprehensive Economic and Trade Agreement), Justine Trudeau tells the European Parliament that the whole world benefits from a strong EU.

Meanwhile back in the UK all eyes are focused on February 23, the day of by-elections in Stoke-on-Trent and Copeland – where the electorate voted by majorities of 70 % and 62% respectively to leave the EU.

All eyes will then turn to France, where Marine Le Pen has been given high odds of winning the French presidential election. Her father however has lost his case in Luxembourg against the European Parliament, which has taken action to recover monies paid to him and his parliamentary assistants.

Finally, BBC Radio 4 launches its series ‘Brexit – A Guide for the Perplexed’ on February 17th – will the Government tune in?

Recent Case Law from the CJEU:

Opinion of the Advocate General C-74/16 Congregación de Escuelas Pías Provincia Betania

State aid: In the view of Advocate General Kokott, tax exemptions for Church-run schools do not, as a rule, breach the prohibition on State aid

Judgment of the Court of Justice C-219/15 Schmitt

Approximation of laws: The Court of Justice delivers its judgment in the case involving breast implants made of inferior quality industrial silicone

Judgment of the Court of Justice C-560/14 M v Minster for Justice and Equality

Claims for Subsidiary Protectionan applicant for subsidiary protection does not have the right to an interview but an interview must be arranged where specific circumstances render it necessary in order to examine the application with full knowledge of the facts.

Opinión C-3/15 Avis au titre de l’article 218, paragraphe 11, TFUE

Law governing the institutions: the EU, acting on its own, may conclude the Marrakesh Treaty on access to published works for persons who are visually impaired

Judgment of the Court of Justice C-562/15 Carrefour Hypermarchés SAS v ITM Alimentaire International SASU

Comparative advertising based on prices as between shops having different formats and sizes is unlawful in certain circumstances

Opinion of the Advocate General C-638/16 X and X

DFON: According to Advocate General Mengozzi, Members States must issue a visa on humanitarian grounds where substantial grounds have been shown for believing that a refusal would place persons seeking international protection at risk of torture or inhuman or degrading treatment

Judgment of the General Court T-646/13 Minority SafePack – one million signatures for diversity in Europe v Commission

Citizenship of the Union: The General Court annuls the Commission decision refusing registration of the proposed European citizens’ initiative entitled ‘Minority SafePack – one million signatures for diversity in Europe’

Seven Days in Europe

Angela Merkel told Barack Obama that “spying on friends doesn’t work” after Der Spiegel alleged that her phone had been tapped by US intelligence agencies. It was reported that Merkel was convinced that the research was plausible and substantial enough to demand clarification from the White House, and the German foreign minister has called the US ambassador to a personal meeting to discuss the allegations. Le Monde also reported that NSA internal memos showed evidence that the US had spied on French diplomats in America and at the UN.

The scandal is threatening to overshadow this week’s European Council summit. The agenda focuses on efforts to consolidate Europe’s economic recovery, digital economy, innovation and services, jobs, and migration from Africa and the Middle East following the Lampedusa shipwreck tragedy. Earlier in the week, the European Parliament moved to secure data privacy and curb transfers with the US.

Member states agreed that negotiations with Turkey about EU accession would resume on 5 November. The discussions were originally scheduled for June, but were postponed after the violent police response to anti-government protests in Istanbul and other Turkish cities. Turkish accession has been a slow process – the country was awarded candidate status in 1999, but progress has been stalled by Member State objections, particularly from Cyprus. Turkey’s human rights record is also a regular sticking point. Continue reading

Seven Days in Europe

IMG_4239 (3)MEPs released a statement on the escalating situation in Turkey, stating their concern at the “disproportionate and excessive use of force by Turkish police to break up peaceful and legitimate protests”. A resolution was passed warning against the use of harsh measures against peaceful protesters, and said prime minister Recep Tayyip Erdoğan must take a unifying and conciliatory position. However Erdoğan has said that he does not recognise the EP’s decision as binding over Turkey.

The European Parliament also endorsed rules that introduce common procedures and deadlines for handling asylum applications and basic rights for asylum seekers arriving in the EU, to iron out differences between national asylum procedures. Required minimum reception conditions include a defined shortlist of grounds for detaining asylum seekers, a guarantee of decent detention conditions, and an early assessment of asylum seekers’ medical needs. The rules also allow for Europol to access a database of asylum seekers’ fingerprints. Continue reading

Seven Days in Europe

On Monday 15 out of 27 Member States voted for a two-year ban on pesticides thought to be harmful to bees, giving the Commission the final say on whether to approve the ban. It was passed despite fierce lobbying from chemical companies and opposition from eight Member States. The ban proposes to restrict the use of three neonicotinoids on plants and cereals attractive to bees and has divided the scientific community. Although it is argued that the ban is necessary to gauge whether bee colonies recover in the absence of these pesticides and create a strategy for the bees’ survival, some observers are worried that farmers will resort to using older pesticides that are damaging to other species.

Speculation was that the ECB will cut interest rates, reducing its key interest rate to a new record low from the current 0.75%. Data released earlier in the week indicated that German manufacturing shrank in April, and the ECB will likely seek to boost growth in other troubled Eurozone economies. Continue reading

Seven Days in Europe

The EU’s full ban on testing cosmetics on animals came into force. As from Monday cosmetics tested on animals cannot be marketed in the EU. The Commission, having considered the impacts of the marketing ban, decided the development of cosmetics does not warrant animal testing.

Italy has been dominating European news this week. The country is in a diplomatic crisis with India after refusing to return two Italian marines who have been charged in India with the murder of two fishermen. The men had been allowed to visit their home country in order to vote in last month’s elections, but were ordered to return within four weeks to face trial. As the incident took place in international waters, Italy believes India has no jurisdiction. On Wednesday India’s Supreme Court ordered the Italian ambassador to not leave the country.   Continue reading