The European Union is exaggerating in its demands for Brexit, especially about the European Court of Justice’s future role

« Brexit means Brexit ». So said Theresa May post referendum 2016. She took some time to discover what her words meant. One cannot be in and out the single market, or the customs union, or participate to the agreeable elements while abandoning the others. This is not simply like the UK opt out of police and justice cooperation. And being an outside partner of the EU implies also constraints (as Norway, Switzerland, Turkey and Morocco will easily attest).

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The European Union is exaggerating in its demands for Brexit, especially about the European Court of Justice’s future role

“Brexit means Brexit”. So said Theresa May post referendum 2016. She took some time to discover what her words meant. One cannot be in and out the single market, or the customs union, or participate to the agreeable elements while abandoning the others. This is not simply like the UK opt out of police and justice cooperation. And being an outside partner of the EU implies also constraints (as Norway, Switzerland, Turkey and Morocco will easily attest).

Unfortunately, now, the same kind of denial now also appears on the EU side. The exit bill has been increased to 100 billion euros (never have the British been so loved as for their net contribution to the EU budget). Perpetual rights seem to be requested not only for EU residents in the UK, but also their future mate or children. The European Court of Justice (ECJ) must imperatively have full jurisdiction on future conflicts concerning the implementation of the exit agreement. This too looks like trying to perpetuate agreeable components of the present situation.

It is dangerous, for two very different reasons. First, of course, loading the boat excessively broadens the scope, increases expectations, generates conflicts et makes a final deal less likely. The EU, like the UK government before, needs to adjust to reality. It must compare the limited immediate benefits of this drastic approach with the global benefits of a new deal. Second, and this is more important, the EU must be extremely careful about the precedents it is creating now. Most people do not see it, as they did not believe before that Article 50 would ever be used, but there will be other exits from the EU. We thus need reflect carefully to create future incentives for fair deals, and not systematic clashes. Article 50 was invented, after all, to show that the EU was not a prison. We must apply it accordingly[1].

As far as the financial agreement is concerned, the Commission has indicated it intended to find first an agreement on a methodology, rather than discussing endlessly about numbers without order. This is a wise position. All EU parties should thus try to respect it and concentrate on methodological propositions, rather than evoking ever rising amounts without a clear methodology.

As far as the status of the EU migrants in UK is concerned, it is hardly defendable to propose that nothing will change post Brexit. First of all, “Brexit means Brexit” – for everybody. Whatever we like personally, the EU Treaties’ nature changed when the States’ withdrawal right was introduced. The idea of permanent rights lost its legitimacy. Additionally, as an excellent study by the European Parliament concludes, in international law, there are no acquired rights “with regard to the rights contained in the status of European citizenship and in relation to the four fundamental freedoms of the single market”[2]. Second, in principle, it is hard to justify that EU migrants, through the maintaining of many European regulations, will become some sort of a super-privileged caste in the future UK (as will the UK migrants in the EU Member States). The country will thus become some kind of new 1930 Shanghai, where the EU citizens will benefit from multiple privileges (the more so if the European Court of Justice keeps a full jurisdiction). Third, such a system will tremendously complicate the future implementation of the Article 50 exit agreement (the more so if the European Court of Justice is involved). One will need to define the implementation and scope of an extremely large amount of rights. This will make the negotiations much more complex – and longer. It can also provoke a multiplication of trials later, which is absolutely not desirable.

This does not mean at all that both categories of residents cannot be protected. But they need to be, in their own interests, on the basis of defendable principles and simple rules. One solution for example would be to establish a drastic interdiction of any discrimination with UK (or EU) nationals. The rule would also apply to their present mates and children. Another (cumulative) solution would be to organize an exceptional operation of mass naturalization for those who desire it. Some Member States with numerous migrants have done it in the past with illegal migrants. Why not do it here with legal ones ? Such simple measures would simplify hugely the life of all persons involved. Otherwise, demanding the application of tens of EU regulations (in their present or future version) will create enormous bureaucratic procedures.

Finally, there is the European Court of Justice (ECJ). The Commission’s 3 May Draft Guidelines foresee that for “(a) continued application of Union law; (b) citizens’ rights; and (c) application and interpretation of the other provisions of the Agreement, such as the financial settlement or measures adopted by the institutional structure to deal with unforeseen situations, (…) the jurisdiction of the Court of Justice of the European Union (and the supervisory role of the Commission) should be maintained.” (This solution has naturally a connection with the desire to keep some aspects of EU law applied on the UK).

This could create an incredible legal vipers nest. To begin with, the Commission has forgotten to indicate its legal analysis. It would certainly help since this is of course a brand new debate, without precedent. The Article 50 agreement is a rather surprising concept. It seems to be an EU internal agreement that will morph into an external one in 2019. Additionally, it seems at first sight paradoxical to grant after 2019 jurisdiction to the ECJ to deal with conflicts between a third state (which the UK will be after at that moment) and the EU or EU individuals. The UK would then become the only third state submitted to the full and direct jurisdiction of the ECJ. Furthermore, one wonders how this is considered acceptable for a sovereign state. Such a state would thus be bound by decisions taken by a judicial authority where it is not represented and whose judges would be appointed by its potential opponents ! This time, the solution looks a lot like the leonine treaties imposed by England to China in the 19th century.

This is certainly no easy question. The ECJ is very hostile to external courts’ jurisdiction (see its strongly negative 2013 opinion on the EU adhesion to the European Convention of Human Rights). The EU external agreements have used various solutions, not always satisfactory. After May’s first speech in October 2016, it was already clear that this would probably become one of the nastiest items of the Brexit negotiations[3]. It is certainly easier to compromise on finance or immigration. This explains, by the way, why all Member States should beg Belgium to send its questions to the ECJ about the judicial aspects of CETA (Belgium, as usual, is incredibly late but in one year each month will count). The recent ECJ’s opinion about the Singapore trade agreement should be seen as a serious warning.

There are still other difficulties. Technically, the ECJ is hardly the best setting to deal with such litigation. Though nobody seems to care, it has both very heavy procedures and very high costs (for plaintiffs as well as taxpayers). Additionally, its procedures take a lot of time, which will be a very concrete problem for plaintiffs in the Brexit framework. The EU institutions would be well inspired to organize a serious impact assessment about this. Interestingly, as happened in 2015 when Parliament and Council decided to double the General Court, they have not done any kind of preparatory reflection or consultation. From this regard, EU judicial affairs seem to suffer from a persistent curse. Last but not least, the European Court of Justice has presently other things to do. Recently, for example, it has been sharply criticized by various supreme national courts (Germany, Italy, and Denmark…). Its priority should be to deal with this core business.

Here too alternative solutions can be offered, based or not on existing models in EU external agreements. We need first to reduce the possibility of further litigation, with simple rules, and then to create a judicial mechanism which will be flexible, economical, rapid… and most important of all fair. For the sake of illustration, the exit agreement could allow individuals or associations to submit complaints to the European Commission if they feel the general interdiction of discrimination has been violated by the UK authorities. If the Commission finds this is the case, it should be obliged to suspend the participation of the UK to various programs and to propose other trade measures to the future bilateral committee in charge of the EU/UK relations (the control of this would thus fall under the jurisdiction of the General Court). Surely other systems could be imagined. If they are not, our governments’ present line of reflection (?) will create a paradise for procedural lawyers – but a complete legal hell for the rest of us.

“Brexit means Brexit”. All governments must assume the consequences of that. The EU has rightly insisted on settling all the legal, institutional and financial consequences, of more than 40 years of UK presence. It has rightly demanded a balanced participation to the single market. But it must also take into consideration the common need of all to maintain a deep cooperation, and most of all the need for the European Union to be, and to appear, fair in this procedure. This is not a war, but a divorce, and all of us should strive to make it an amiable one.

Franklin DEHOUSSE

Professor at the University of Liège

Former Special representative of Belgium

Former judge at the Court of justice of the European Union

[1] /publication_article/can-the-british-brexit-notification-be-withdrawn/

[2] The impact and consequences of Brexit on acquired rights of EU citizens living in the UK and British citizens living in the EU-27

http://www.europarl.europa.eu/thinktank/en/document.html?reference=IPOL_STU(2017)583135

[3] /publication_article/brexit-will-not-be-the-greatest-negotiation-of-all-times/