Brexit: the Age of Uncertainty

• Autores: Jukka Snell
• Localización: European law review, ISSN 0307-5400, Nº 4, 2016, págs. 445-446
• Idioma: inglés
• Texto completo no disponible (Saber más ...)
• Resumen

  • Following the UK referendum to withdraw from the Union, the European integration project has been thrown into uncertainty. This is the result of both the short-term difficulties in managing the divorce and the longer term consequences the UK's departure will have. Any aura of inevitability that integration may once have carried has dissipated.

    In the short term, we will have to decide how art.50 TEU is to be applied. This will not be easy - the provision leaves many questions unanswered and its interaction with domestic law may prove complex. The first relates to the notice of withdrawal that starts the formal process. There must be sufficient time for the national constitutional processes to be completed and it might in any event be sensible for informal discussions to take place before the two-year period prescribed by art.50 begins to run. But what happens if the notice is not forthcoming? It is going to be exceedingly difficult to manage a Union where one member has decided to leave, so the EU has an interest in getting the exit over and done with, and a lengthy delay for tactical purposes is surely against the spirit of the provision and the Treaty. Secondly, will a withdrawal agreement suffice, or will a second treaty be needed to establish the UK's relationship with the EU following the exit, probably necessitating unanimity among the 27 and national ratifications, which in turn may involve referenda? This depends on what the UK actually wants, apart from withdrawal, which is not clear at the moment. Thirdly, what will the position of the UK be in EU decision-making during the withdrawal process? Will it continue to negotiate and vote on regulations and directives that will never apply to it? The primary tool for managing these questions is the trusty old principle of sincere co-operation, which will undoubtedly be stretched to the maximum. Fourthly, what happens to the vested or acquired rights, for example the rights of those who have relied on EU rules to move and reside in the UK, or vice versa? What kind of agreement will be reached, and what happens if there is no agreement - what protection, if any, can be derived from art.8 ECHR, assuming the UK continues as a member of the Council of Europe in the long term, or perhaps from art.70 of the 1969 Vienna Convention on the Law of the Treaties or customary international law? There is a danger that the legal situation for many becomes precarious in the extreme. Fifthly, will the UK abide by all its EU obligations during the withdrawal process, or will it seek to impose restrictions, for example on immigration or on the reach of the Court of Justice? If it does, how could the EU respond - might art.7 TEU be invoked? Sixthly, how would the Treaty rules and the UK devolution interact, for example if Scotland were to decide to remain a member of the EU? Finally, what if the notice of withdrawal has been served, but the UK constitutional requirements are no longer met, for example if a new Parliament decides the UK should continue as a Member State after all? Quite apart from the shorter term difficulties highlighted above, there are greater uncertainties looming over the integration project as a whole. At least three very different scenarios can be discerned. The first can be called integration enhanced. Here the assumption is that some of the leading Member States will wish to rally the herd and demonstrate that integration is still going strong by launching new initiatives, perhaps in particular in the field of security, where the cleavages might not be as great as in the further development of the eurozone and where much could be done without Treaty change. Further, it could be argued that the UK has at times acted as a powerful opponent of integration, and its absence might serve to facilitate progress. The second possible scenario could be called integration destabilised. Under this scenario, Germany begins to be viewed as an ever more hegemonic actor in the absence of the UK. Other Member States may come to form alliances designed to balance its influence. It is an age old fear in Germany, where in the 19th century Bismarck spoke of the "nightmareof coalitions" and, arguably, this kind of thinking influenced some German decision makers in the run up to the Maastricht Treaty and the acceptance of the EMU. The third scenario is disintegration. Here the political virus spreads and referenda are organised in other countries as well. An increasing number of ugly terms with the word "exit" at the end will be coined. In the context of integration we have seen this phenomenon, for example prior to the demise of the Constitutional Treaty, where the promise of a referendum in the UK is thought to have pushed France to offer a referendum as well. The scenarios are very different but not mutually exclusive - more than one could unfold at the same time - but a common theme is the existential uncertainty that is associated with all of them.

    Unfortunately much of the EU's attention is going to be directed at managing the short term issues and uncertainties - the capacity to address the long terms ones may prove to be lacking. However, on a practical level there is one blessing: at least the UK has not adopted the euro. Whatever the uncertainties and difficulties that surround the exit of the UK, they pale into insignificance when compared to the trouble that the departure of a euro country would entail. This might also act as a check on any tendency towards disintegration among the eurozone countries.

    The withdrawal and the establishment of a new relationship between the UK and the EU will take some time and will not affect the mission of European Law Review. The need for "authoritative and thought-provoking articles on all aspects of European law and incisive commentaries on current developments" will only grow, and we will continue to do our utmost to supply them. We hope this is already on display in this issue where, in addition to the regular content, the members of the editorial team and a number of other leading academics have come together to offer the first reactions to Brexit.