Public law 2 - Brexit

How does a member state leave the EU?

The lex specialis principle states that a member who wishes to withdraw from that organisation must do so unilaterally in accordance with the specific procedure laid down in the withdrawal clause
Prior to the insertion of Art 50 into the TFEU by the Treaty of Lisbon, there was no rule in the founding EU Treaties for the withdrawal of one of its members.

Article 50 states:

• Any member state can choose to withdraw from the Union in accordance with its own constitutional requirements - Art 50 (1)

• The state will have to notify the European Council of its intention - Art 50 (2). The Union shall negotiate and conclude an agreement with that state, setting out arrangements for its withdrawal and its future relationships. The agreement should be negotiated in accordance with Art 218 (3) of the Treaty on the Functioning of the EU

• Art 50 (3) provides that the withdrawing Member State leaves 2 years after notification, unless the withdrawal treaty sets an earlier date, or the departing state and the remaining EU agree to extend this period

Article 50 TEU represents a compromise solution = member states have the right to withdraw, but they don’t have the immediate right to do so

The UK’s legal and institutional position before and immediately after Brexit:

The CJEU ruled that the UK remained otherwise bound by EU law in the period up until its departure from the EU and during any extension period

The entry of the withdrawal agreement on 1 Feb 2020 meant that EU Treaties ceased to apply in the UK as per Art 50 (3)

Why did the UK extend its membership?

The first withdrawal agreement was agreed between the UK and EU in Nov 2018. But the UK refused to agree to this agreement on 3 occasions, so in order to avoid leaving the EU without a deal, there were a series of extensions of EU membership on the basis of Art 50 (3)

The withdrawal agreement

The second version of the Withdrawal Agreement was the same as the first, except for changes on to the protocol on Northern Ireland

• Part 1 of the agreement includes an obligation for the UK to confer supremacy and direct effect upon agreement in national law

• Part 3 of the agreement set out "“separate provisions” to address what happened at the end of the transition period ie cases involving the UK which were pending in UK courts on Brexit day and the further consequence of any substantive EU law ceasing to apply as between the UK and EU

• Part 4 sets out the rules of the transition period. The key elements of the transition period were that EU law (including new EU law) still applied in the UK, except in areas covered by UK opt-outs ie the single currency. But the UK was not to be represented by any EU institutions ie in the CJEU which continued to have its usual jurisdiction in the transition period

Northern Ireland protocol

The protocol refers to the UK’s territorial integrity, equality rights and the common travel area between the UK and Ireland. Originally this included a UK-wide customs union with the EU as a backstop, but this fell short of the obligations of EU member states as there would have been limited obligation to keep up with new EU legislation and CJEU case law etc. This would have meant that lots of EU law would not have applied to the UK

Instead the revised protocol states that Northern Ireland is part of the UK’s customs territory for international trade purposes. So no customs duties are charged on goods moved from GB to Northern Ireland unless there is a risk that goods may be sold in the EU. The Protocol also retains provisions on the UK internal market, as well as listing specific EU laws which continue to apply in Northern Ireland ie product regulation

Controversy over the protocol

• The protocol has acted a source of controversy as it provides for some checks between Northern Ireland and GB, which Northern Ireland unionists usually object to, but Northern Ireland nationalists do normally support it

After Brexit - Trade and Cooperation Agreement (TCA) 2021

The final product from negotiations was the TCA. It not only establishes a free trade area for goods and services, but also contains provisions on investment, digital trade, intellectual property, energy etc

The TCA has Art 217 TFEU as its legal basis in the EU legal order

But the TCA is notable for increasing trade barriers and decreasing cooperation between the UK and EU when compared to the position of EU membership

In relation to trade and goods, the TCA provides that no customs duties are to be imposed on any imports or exports of goods originating in either the UK or EU (Arts 21 and 22). But in order for goods to benefit from this idea, complex rules of origin requirements must be complied with in order to prove that the good in question did originate in the UK or EU (Arts 37-68) = direct consequence of UK deciding to leave the customs union

There is a limited scope for mutual recognition of standards which is nothing like the wide-ranging system of mutual recognition which exist in the EU single market = increased costs for traders etc

What happens to EU legislation in UK law after Brexit?

In 2018, the UK parliament passed the EU Withdrawal Act which converted pre-Brexit EU law into UK law. This law will stay until amended by the UK.

Also CJEU case law before Brexit day will remain binding precedent unless courts of the UK decide to rethink them