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

“Laws are like sausages — it is best not to see them being made”. Bismarck [disputed] 

In part one I argued that should the EU out of spite try to frame laws that onerously only affect the UK, and no other, those laws would be against the fundamental principles of the treaties and spirit of the EU and the Single Market.

This then leaves very limited scope for the EU to try, within the context of treaties, to find something that would only apply to the UK but would not apply as an unintended consequence to other Member States. In short, one that has to still fulfill the EU Directive “General Effect” or the EU regulation "applies to all member states" clause.

Should they however do so, they then stumble upon very significant problem number two in the form of... timescale.

As the Lisbon Treaty exit clause - Article 50 (3) - clearly states there is a two year notice period before the UK is able to remove itself from the jurisdiction of the EU. This two year period can be shortened by an agreement, signed off by both parties, which specifies this, or extended beyond the two years also by agreement by both parties. Nonetheless two years is the default requirement in absence of an agreement under the unilateral part of Article 50 should the UK choose not to negotiate or refuse EU terms.

In the event of notice by David Cameron to leave the EU, this then gives the EU the challenge to find such a law, create one, draft it, invoke it and then win any legal challenges from the UK seeking to delay such a law, all within the space of two years.

That argument not only overlooks the principles of the Single Market, but another of the defining characteristics of the EU – that it moves with glacial pace, if not slower. To illustrate how slow, this piece (and part 3) will attempt outline, if not necessarily comprehensively, the kind of timescales involved.

It’s worth noting at this point that the EU is, if nothing else, a significantly large bureaucracy - there to serve the people it employs, that is the legacy of the Monnet project. The EU absolutely loves law – the more complicated the better. By preventing the layman from getting a grip on what is being done in his name it becomes another form of unaccountable control. Nothing illustrates the characteristics of the EU better than community legislation in force.

EU law thus is bewildering complex, so as a consequence one thing is certain - the process of it eventually being implemented in member states is not fast. And this lack of speed is imbued within its culture. A complexity that is illustrated below (click to enlarge)

In the UK, Parliament cannot function in the same lackadaisical time frame as EU Institutions because on a regular basis it has to request a mandate from the electorate and any laws that are not passed before an end of a Parliamentary period are either dropped or rushed through in the ‘wash-up’ process. And ultimately it cannot bind its successor.

By contrast, the EU has the luxury of not being subjected to such inconveniences, and so by being immune from the democratic process long term plans can continue without interruption. It is revealing that during EU Parliamentary elections the process of EU law-making remains largely unaffected and continues regardless.

This can mean, for example, that from a standing start, where a completely new issue is being considered, framing a directive can take up to 20 years. This though is at the more extreme end of the time scale. But a good example of the EU's slow processes can be found with food labeling. A review was announced by the EU Commission in 2004, a regulation was issued in 2006, Yet by 2011 (2 years after an EU Parliamentary election) the regulation was still active yet to be implemented having come to a temporary standstill.

And nor can the process be significantly quickened up by taking shortcuts. EU Institutions' actions are themselves judiciable. If any one of them does try to cut legal corners or does not follow due process, the legality of the directive can be challenged – holding it up for a number of years.

The EU thus likes slow; its priority is to reach its destination eventually not necessarily to do it in a hurry.

Another culture which is embedded within the EU is another which is often overlooked, is a consequence of the project not yet being finished. Performing, as it currently does, a transition from intergovernmental structures to a supranational ones (in the vision of Monnet) has meant that since its conception it has been trapped for all of its existence between two incompatible ideologies - not fully one or the other. The idea of closer union has been true with each treaty but yet has never fully negated the intergovernmental part. This has inevitably created rival factions within EU institutions.

Nothing embodies this more than the 'mistake' in the Lisbon Treaty of making the European Council permanent, thus creating an institutional and inherent power struggle inevitable between the intergovernmental EU Council and the supranational EU Commission. Such conflicts also can be found further down the chain of the process of EU law. Though Lisbon extended Qualified Majority Voting - inline with the wishes of Monnet - removing the national veto from certain policy areas (which can be found here on page 3 onwards), the use of member state's vetoes within the Council still remain in crucial areas such as taxation and foreign affairs for example.

And it is with this in mind that we turn to the 'ordinary legislative procedure', formally known before the Lisbon Treaty as 'co-decision' - the main legislative procedure by which EU directives and regulations are adopted. Article 294 lays the procedure here on page 197. The simplest way of describing the procedure is that it has three potential stages, or readings, and eight termination or exit points, for legislative outcomes - five exit points mean the act is adopted, three mean the act is not adopted.

'Ordinary legislative procedure' begins with the EU Commission - which generally (but not exclusively) has the ability to propose new laws, but it can only do so with a legal basis that is outlined within EU treaties. The EU is only be able to exercise those powers that have been conferred on it by the Member States - willingly agreed to by those member states. The Commission proposes a draft law to both the EU Parliament and the Council. The draft law ultimately has to be approved by both bodies.

It can be approved with the text as is presented by an absolute majority vote in the Parliament and (usually) by a QMV vote in Council. However, after the first reading Parliament may vote to propose amendments to the draft law and thus follows a procedure of subsequent readings where both parties to try to adopt a joint text that they both agree on. Any failure to reach agreement between them results in failure of the proposals.

It's worth noting that while the Council largely uses QMV, Parliament acts by an absolute majority of votes cast, and since the Lisbon Treaty, by having equal say in the legislative procedure means it has the effective right of a veto. This gives it a bargaining power that it lacked previously, where it was only consulted and its views could be ignored by the Council. This then gives ample opportunity for member states if they so wish to block or delay legislation.

In addition, the Lisbon Treaty, also includes a 'braking system' for member states for certain legislative proposals such as ones which affect its criminal justice system. As per Articles 81 and 82 (page 32 onwards) a member state can refer a proposal under ordinary legislative procedure to the European Council and thereby suspend it for four months:

3. Where a member of the Council considers that a draft directive as referred to in paragraph 2 would affect fundamental aspects of its criminal justice system, it may request that the draft directive be referred to the European Council. In that case, the ordinary legislative procedure shall be suspended. After discussion, and in case of a consensus, the European Council shall, within four months of this suspension, refer the draft back to the Council, which shall terminate the suspension of the ordinary legislative procedure.

However if no consensus is reached within four months, the ordinary legislative procedure is converted to enhanced cooperation for member states which wish to follow it and excludes those that don't.

Thus in practice from the EU Commission’s COM(final) – an example - to an agreed directive usually takes about two years but only if there is a basic consensus to start with. Plenty of examples of the time frame involved with successful Directives can found by just a cursory look at EU Legislative Observatory: here, here, here, here, here, here, here and here. This one still in progress hasn't had its first reading in Parliament after a year.

The processes of ordinary legislative procedure illustrates clearly that the EU is a mixture of member states' wishes and the wishes of itself, where it cannot arbitrarily impose laws without a degree of compliance within the system of the member states. Instead it is imbued with a culture of horse-trading rather than one of outright dictatorship.

Therefore the EU would have many hurdles to address to inflict, out of spite, a law to damage deliberately a member state should the state in question invoke Article 50. It has to find a law that is within the treaties, has a general effect, does not affect other member states in the process, has agreement of the majority of the other member states, passes due process within the EU itself, is not subject to a veto within the Council and do all this within a certain time frame.

In the very unlikely event they discover one, they will hit upon another very serious problem - non compliance by a member state - and it is that I will address in the final part.