Sunday, 27 January 2013

Article 50, 2 Years And EU Law (Part 1)

If nothing else the prisoners’ voting saga at least demonstrates that if the UK government is willing, it can delay decisions and rulings from European institutions for many years – we’re now in the eighth year of ECHR’s ruling without implementation.

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.

10 comments:

  1. A great post - thank you, Froggie :)

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  2. Er, Anonymous said was in fact moi!

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  3. Damn Unix! now what Anonymous said has disappeared! Oh hang on, it may be waiting moderation. Anyways, to repeat:

    Echoing the words of She Who Must Be Obeyed (otherwise you get sent to the naughty step) a great post indeed, TBF

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  4. @GV Thank you...

    @Mr Witterings Thank you as well... "She Who Must Be Obeyed" There's a lot of 'em about... ;-)

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  5. TBF, you appear to have gone from a position where you simply expressed a preference for a TEU Article 50 exit (which is tenable, but wrong), to deeming all sorts of actions as impossible or illegal. So for clarification here are what I understand to be your prohibitions:
    1. Repatriation of powers is not possible: the only legal method would be via an IGC and a subsequent new treaty, which requires ratification by all 28 member states, and this is not going to happen.
    2. It is illegal for the UK to attempt to exit the EU by repealing the ECA.
    3. It is illegal for the UK to abrogate any treaty (unless via an exit clause, if the treaty has one).
    4. Invoking TEU Article 50 automatically leads to a new treaty.

    My short response to the above is:
    1. There are no absolutes with the EU elite. If it suits their purposes Cameron will get some powers repatriated.
    2. & 3. "No (UK) parliament may bind its successor" - whilst we are still regarded as sovereign anyway.
    4. It may well do so, but it does not have to.

    It may suit the EU elite to keep us in the EU, after all we give them a fair amount of cash every year. They would also lose prestige, and power over some of the other 27 if we left. Hence they may be motivated to bend, or even break their own rules (just as they have already done so to prop up the euro), in order to keep us in. They will huff and puff about the UK not being allowed to pick and mix, but on balance I suspect they will give Cameron some concessions without either an IGC or a new treaty with the UK. So in my view, repatriation of powers is not impossible, but only time will tell.

    The likely outcome if there is an offer to repatriate some powers, and Cameron is still PM, is a referendum in the UK. And it is likely to be won by Cameron so we will be locked in the EU for another generation (or until the EU collapses). If this referendum scenario plays out as I think it will, all this talk about Article 50 vs Repeal of the ECA will be so much wasted effort by eurosceptics.

    The Vienna Convention makes clear that it applies to States (Article 1) and the preamble includes the "principle" of "the sovereign equality and independence of all States". All the way through it, the powers (or sovereignty) of States are explicit or implicit. Such powers would be meaningless if, once signed, a treaty could never be abrogated.

    This is not the same as your statement "the Vienna Treaty also does not list sovereignty as a means of automatically absolving countries from their treaty obligations". No one I know, certainly not me, has even suggested that states should be "absolved" from their treaty obligations. Whilst signed up to a treaty a state must abide by it (the states sovereignty is thus limited). However, once having formally abrogated that treaty (as we would by repealing the ECA) the state no longer has those treaty obligations.

    Treaties are fairly rare so inevitably abrogating a treaty happens even less often. But times, politics and regimes change so treaties are not for all time and states do abrogate them. One recent example is when the USA abrogated the ABM ballistic missile treaty in 2001. Another is when the Czechs exited the Warsaw Pact in 1991.

    You quote Vienna Article 56 1b "a right of denunciation or withdrawal may be implied by the nature of the treaty." The nature of all treaties signed by the UK is on the basis that "No parliament may bind its successor" - that is part of the UK's sovereignty. So we must abide by a treaty whilst it is force, but retain the right to abrogate any treaty (until such a time that the international community no longer recognises our independent sovereignty).

    to be continued ..

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  6. continued ..

    The Metric Martyrs Appeal Court judgement (Laws et al) makes it clear that EU laws only supercede UK (domestic, non-constitutional) laws because the ECA gives the EU laws the status of constitutional law. That judgement still stands. Clearly repeal of the ECA (which is in the power of parliament) makes EU law inapplicable within the UK.

    Directives from the EU are implemented into domestic law by the UK. They would thus remain on the statute book after a UK exit from the EU (and would have to be dealt with if necessary over time by the UK Parliament). On the other hand EU Regulations are not transposed into UK law but 'reside' in Brussels. Prior to exit an enormous amount of work will be required to enact duplicate (but UK) legislation to (at least temporarily) replace redundant EU laws (which govern institutions that we still need to run a modern state) before repealing the ECA. However, this work would still have to be done even if we took the Article 50 route.

    In general your citations do not support your absolutes. There is no prohibition in the Vienna Convention, or elsewhere, that actually defines an international refusal to recognise abrogation of a treaty. Even an EU appeal to the ICJ probably would not work because the ICJ tends not to get involved in politically controversial issues. On occasions, when has done it has been ignored. And after all what is the EU going to do - invade us? No, sensible pragmatism will rule the day

    As for a new treaty being automatic upon invoking TEU Article 50, come on, TBF, you don't require a treaty to not belong to the EU. The EU is not that omnipotent. A new treaty with the EU would only be a necessary outcome after invoking Article 50, if the UK stayed within the EU's jurisdiction in some way but under radically revised conditions.

    You claim that the provisions of TEU Article 50 (4) are "entirely logical otherwise the UK would end up negotiating with itself." Well, only if the UK's representatives were schizophrenic. If it were allowed (it isn't) the UK would merely be present as the applicant, and be able to take part in all the negotiations round the table as the applicant. But TEU Article 50 (4) states the UK cannot "participate in the discussions of the European Council or Council or in decisions concerning it" so we are excluded.

    This means the rest of the EU can decide what terms they will offer us. Now they may be nice about it, but 40 years has shown they won't be. They won't have a "hissy fit" as you inelegantly put it, they will carefully engineer such exit conditions that achieve their desired outcome. They will exact a price, they won't give us anything for free. The terms may be so draconian, politically or economically, that we are forced (for the pedants, that does not mean, ad litteram, chaining us to the EU) to remain in. Actually the EU elite may want to get rid of us - but they will exact a price for that too. If anyone thinks differently please cite all the negotiations within the EU that went the UK's way.

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  7. Thank you for your long detailed comment I’ll begin responding to your assertions thus:

    1. Repatriation of powers is not possible: the only legal method would be via an IGC and a subsequent new treaty, which requires ratification by all 28 member states, and this is not going to happen.
    2. It is illegal for the UK to attempt to exit the EU by repealing the ECA.
    3. It is illegal for the UK to abrogate any treaty (unless via an exit clause, if the treaty has one).
    4. Invoking TEU Article 50 automatically leads to a new treaty.


    1. That is largely my position yes – though my precise point is that it is possible in theory just not in practice.

    There are no mechanisms within the current EU Treaties to do that for very good reasons; it goes against the principles of ‘ever closer union, Acquis Communautaire and the ultimate desire of complete economic and political union. Repatriation of powers is only possible (in theory) via a new treaty. This is the position Cameron is taking – that he can hijack a future treaty via an ICG by using the threat of a veto. My view is he can’t but that is another matter. You write

    “Hence they may be motivated to bend, or even break their own rules (just as they have already done so to prop up the euro), in order to keep us in”

    The problem is those two are not comparable. Breaking the rules for the Euro is completely inline with the raison d'etat of the EU – ever closer union. It is desperate to prop up the Euro to prevent its own collapse.

    Conversely breaking EU treaty rules to repatriate power for a specific country would do the completely opposite – giving the UK a special status within the single market – which goes against everything the EU ever stands for and would dangerously risk unraveling the entire project – thus facilitate its own collapse.

    You are conferring upon the UK an importance it does not merit.

    Given the choice between more integration or UK membership, the EU is quite clearly going to choose the former. The Eurozone crisis demonstrates that the EU is going to continue integrating with or without the UK.

    Besides EU Treaties are international treaties, the EU is covered by international law as are we. For us to accept fundamental breaches of agreed EU Treaties as well as the EU offering them, would reflect very badly on both parties with severe consequences.

    2. My position is that exiting the EU by ignoring the Lisbon Treaty would be in breach of our international obligations which were agreed and ratified by our own country.

    You say; "No (UK) parliament may bind its successor". This does not mean that successive Parliaments can ignore the law passed by previous ones, just that it cannot be prevented from changing its mind. Thus with Lisbon nothing prevents Parliament from changing its mind – it can simply do so by following due process – which is A50 – to which it fully agreed with and is obliged to under Vienna which we remain signatories to.

    3. I never said that and it doesn’t even come close to what I said. I laid out the Vienna clauses for revoking an international treaty and merely highlighted that without the exit clause, “it could be argued” that the implied withdrawal was not possible for EEC/EU Treaties because implication was negated by the “ever closer union” clause.

    There are also other reasons for leaving in Vienna – I was merely highlighting the unholy mess the whole process was before Vienna as demonstrated by the Greenland saga, as per my Hansard link. Can I respectfully suggest you read my piece again.

    ...tbc

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  8. ...

    4 Quite right, a country leaving would involve fundamental changes to the EU which require a new treaty and also require new international trading agreements for us with the EU – a new relationship. This is also cannot be done without a new treaty, ratified by all parties concerned.

    Negotiations in any circumstance depends on coming to a common position for mutual self- interest. It is in the EU’s interests and the UK’s to maintain trade with minimum disruption. The EU simply cannot force terms on us:

    a) because of the unilateral clause in A50 we can simply leave

    b) and that the EU’s terms have to be agreed by all member states. It’s simply ludicrous that crisis hit countries such as Ireland are going to ratify terms domestically that prevent trading with a major country

    You then say “The terms may be so draconian, politically or economically, that we are forced (for the pedants, that does not mean, ad litteram, chaining us to the EU) to remain in.”

    If the terms are so draconian then we don’t agree them and just leave as per the unilateral clause in A50. I’m really not sure what part of that you don’t consistently understand…?

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  9. reading the original post and the rally of comments, I'm led to ponder one question:

    Do I trust our European 'partners'

    Troubling times ahead regardless of the direction the British public, should it ever get a say, choose to take.

    I'm for out, or my father put his life at risk in the 1940's to preserve what exactly?

    A deeper thought process required than I have seen demonstrated here I think. Getting the masses to think in such a way is of course a tall order but I believe should be the basis upon which we move forward. Arguing the finer points is manna for blog comment ping pong of course but effort is precious and should be expended to greater effect.

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  10. hey TBF

    thank you for adding so much to the general understanding of this matter.

    I completely and absolutely agree that A50 is the only rational vehicle for executing our deliverance from the EU system.

    My problem is that, to me anyway, the invokation of A50 nevertheless still requires a decision to be made that we will withdraw.

    How do you think this decision would be made (or am I wrong)?

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