With this in mind, I wish to follow on from my previous piece regarding invoking Article 50. Should we do this, there would be a two year notice period (or earlier if there’s an agreement) where the UK is still an EU member and so subject to its laws until we leave. That exit is not immediate leaves open to some the accusation that the EU will, apparently in a hissy fit, force the UK to adopt all sorts of onerous laws with a specific view of damaging us. It is an accusation that plays on the emotions rather than one that is borne out by facts.
In essence the assertion has many fallacies, but two in particular are very significant - ones which pose insurmountable hurdles for the EU to overcome even if they wanted to as they both are contradictory to the defining characteristics of its existence. I will deal with each problem in two separate posts.
The first problem covered here is, ironically, answered by David Cameron’s recent EU speech. As is well documented, not perhaps fully acknowledged by the media, repatriation of powers from the EU to the UK is not possible. There is no mechanism within EU treaties to do it and as Van Rompuy says it would lead to the end of the defining principles of the Single Market:
"If every member state were able to cherry-pick those parts of existing policies that they most like, and opt out of those that they least like, the union in general, and the single market in particular, would soon unravel,"In this he is not wrong, even if he is in everything else. The fundamental principles of the single market according to the EU are laid out here:
The cornerstones of the single market are often said to be the “four freedoms” – the free movement of people, goods, services and capital. These freedoms are enshrined in the EC Treaty and form the basis of the single market framework.Naturally the only way this can be established successfully is to implement laws that apply to every member state the same – which is precisely why the Single Market is used as a Trojan horse to facilitate ever closer political and economic union. To ensure the Single Market runs according to the same set of rules, it needs a body of a bureaucratic makeup to impose those rules, and one which is aloof from its member states. That is the EU's raison d'etat - thus to behave contrary to that would be in breach of the fundamental discrimination principles of the Treaties as well as its intentions. An example of those principles are laid out clearly by Article 34 onwards of the Lisbon Treaty (page 56).
It’s the same reason that UK minimum pricing of alcohol is illegal under EU law as it discriminates against similar cheaper alcoholic products from elsewhere in the EU, in direct conflict with the principle of free movement of goods.
So by logical conclusion what applies to the UK also applies to EU institutions; they are duty bound by EU treaties for EU laws to apply equally and it is in their interests to do so. There is no legal mechanism for the EU to deliberately tailor onerous laws to target a specific country without it applying to the other members as well, in the same way a particular country cannot tailor the Single Market for their own ends. This is borne out again by the nature of the two main forms of EU law; Regulations and Directives.
EU Regulations are defined under Article 288 of Lisbon, described as (my emphasis);
“…binding in its entirety and directly applicable in all Member States”.Clearly then Regulations cannot be used as a targeting exercise. Therefore we come onto Directives, the second major form of EU law, which are also defined in Article 288 (my emphasis);
A directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods.At first glance there appears to be some scope to address each country directly - a form of targeting. However not so. It merely allows flexibility to account for the differences in the makeup of countries such as for geographic reasons. So for example as an island we have to implement a directive dealing with coastal pollution while conversely, and for obvious reasons, landlocked Austria does not. But the Directive still has to have a general effect, as outlined here:
Furthermore, a directive...is a text with general application to all the Member States.Discrimination is prohibited on the grounds of nationality, under EU law, in accordance with Article 7 of the Treaty of Rome. Accusations of discrimination on grounds of nationality is one of the reasons for the ongoing legal battles with Iceland over Icesave.
So it is clear, even if the EU wished it, deliberately forcing upon us, in the event of invoking Article 50, onerous laws for the sake of it out of spite is very limited under current EU treaties. They would have to find a reason that was completely unique to this country so that any law passed would not affect the other 26 Member States as a consequence.
In the unlikely event they discover one, they will hit upon another very serious problem - timescale - and it is that I will address in part 2.