Portfolio blogger

Sunday, April 16, 2017

Brexit and the European Court of Justice - proposed BREXIT guidelines of the European Council

One of the spectacular arguments of the brexiteers was to liberate the U.K. from the "tyranny" of the European Court of Justice (in general from European lawmaking).
The guidelines formulated by the team of Donald Tusk put important limitations to this ambition.
This is partially related to the transition period, partially to the new arrangements.
The new arrangements will require a judicial authority to treat the conflicts which arise from the interpretation of the agreement and to sanction the non-compliance of the parties (remember, the judicial remedies were one of the sensitive points of the TTIP). The EU proposes this to be the European Court of Justice. Another solution, however, may be arbitration - as mentioned, one of the stumbling blocks of TTIP. Whether the EU agrees to that, is up for a bargain.
Also, if the new arrangements are not agreed within the two years from when article 50 was triggered (i.e. end of March 2019), the parties need transitional arrangements. It was already floated by the EU that EU law may remain in force in the U.K. - and this is more in the interest of the U.K. that the EU, therefore the EU has a leverage in this and will use it to make the European Court of Justice the arbiter on the implementation of European law also during this period.
And finally: cases in progress, not just before the European Court of Justice but also administrative instances (like infringement procedures of the European Commission) and cases which may be initiated later based on the period when the U.K. was still a member and was thus bound by European Law. The negotiating guidelines explicitly mention that in these cases the European Court of Justice has to retain jurisdiction even after the departure of the U.K. from the EU.
So - like a lot of other things - this is not so clear cut, as the "Leave" campaigners tried to depict. Surprises still in the making...

Saturday, April 8, 2017

Ever closer union - why and how?

Do not be deceived, I will not philosophise about federalism, power to the EU or power away from it. These are important questions and are dealt with on this blog several times, connected to concrete questions.
What I want to recall here, is just where this term comes from and how it became an obsession.
First of all, the reference is to the first recital of the Rome Treaty, creating the European Economic Community or simply said, the Common Market. Great, let's see whether the Rome treaty actually contains this formulation, or something else. We open EUR-Lex, look for the Rome treaty and find it - surprise, surprise, as the United Kingdom was not among the founding members - in Dutch, French, German and Italian (in alphabetic order of the name of the languages) - Belgium spoke French and Dutch and Luxembourg German and French, therefore four languages for the six founding states. No English, sorry. Here is the link: http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:11957E/TXT - EN stands for the language of the interface, not of the text.
As a devout European and speaking some European languages (one from each main language family), I can try to find the phrase in the existing versions. In Dutch: "verbond", German: "Zusammenschluß". However, in French: "union", in Italian: "unione". So far tie.
The English translation is, however available on the Commission archives.
Let's see this text: it talks about: "lay the foundations of an ever-closer union among the peoples of
Before continuing, a look at the Maastricht treaty shows a new text as the first recital: "to mark a new stage in the process of European integration undertaken with the establishment of the European Communities" while the last recital already continues the line of thought: " to continue the process of creating an ever closer union among the peoples of Europe, in which decisions are taken as closely as possible to the citizen in accordance with the principle of subsidiarity,.

Some commentators conclude from the first recital, that it has nothing to do with political union, but targets to bring the peoples of Europe closer together. Reading the other linguistic versions, this interpretation seems close. The member states creating the European Union, however, saw their enterprise expanding co-operation to non-economic political areas, although at different depth - the famous "three-pillar approach" abandoned by the Lisbon Treaty -  as the further implementation of the original idea, thus giving it a more express political dimension retroactively.

I did not really hear any "federalist" to quite this passage to support any idea of closer co-operation while this was often quoted as the stumbling block by Britons - be euroskeptic or just opportunist like Cameron - hindering their country's commitment to the EU. The thoughts I outlined above are quoted in defence of loosening the union by Fullfacts, which calls itself "the UK’s independent factchecking charity" - and is actually fairly neutral

So what is left is to quote again the  final phrase of the already quoted recital of the Maastricht treaty: "...in which decisions are taken as closely as possible to the citizen in accordance with the principle of subsidiarity". This can be seen as a limit, or even as a guiding principle what this ever closer union will really look like.