Legal Implications of Brexit Legal Implications of Brexit of Implications Legal
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HRS Hagener Rechtswissenschaftliche Schriften Band 2 2 Karl August Prinz von Sachsen Gessaphe, Juan J. Garcia Blesa and Nils Szuka (editors) Legal Implications of Brexit Legal Implications of Brexit of Implications Legal Gessaphe/Garcia Gessaphe/Garcia Blesa/Szuka 27,80 € ISBN 978-3-96163-149-0 http://unipress.readbox.net Sachsen Karl August Prinz von Sachsen Gessaphe Juan J. Garcia Blesa Nils Szuka (editors) Legal Implications of Brexit Hagener Rechtswissenschaftliche Schriften Band 2 Legal Implications of Brexit Karl August Prinz von Sachsen Gessaphe, Juan J. Garcia Blesa and Nils Szuka (editors) Impressum Bibliografische Information der Deutschen Nationalbibliothek Die Deutsche Nationalbibliothek verzeichnet diese Publikation in der Deutschen Nationalbibliografie; detaillierte bibliografische Daten sind im Internet über http://dnb.d-nb.de abrufbar. 1. Auflage 2018 ISSN 2511-0403 ISBN 978-3-96163-149-0 readbox unipress in der readbox publishing GmbH Münsterscher Verlag für Wissenschaft Am Hawerkamp 31 48155 Münster http://unipress.readbox.net FOREWORD The withdrawal of the United Kingdom from the European Union will become effective in roughly a year’s time (29 March 2019). After many decades of close economic and social relations regulated by a common legal framework, the so-called Brexit could put a strain on aspirations for stability on the European continent, especially in view of the tensions caused by the recent financial crisis. Many fear the Brexit process will open up a Pandora’s Box of serious problems for the EU. What impact will Brexit have on the rights of EU citizens in the UK, in other Member States, and third country nationals? How will it affect the legal regulation of present and future economic and social relations between the EU and the UK? How will new regulations influence such relations in turn? These and other similar legal questions need to be answered in order to prevent excessive levels of legal uncertainty that have the potential to hinder the European project of integration through law. Even though the Brexit process continues to lack clarity and uncertainty reigns about its outcome, we consider it useful to discuss some of its possible legal implications in relation to foreseeable legal scenarios. The discussions gathered in this volume took place at “The Legal Implications of Brexit” conference held between 8th and 9th November 2017, in Hagen (Germany) by the Faculty of Law of the FernUniversität in Hagen and co-organized by the Open University Law School of the United Kingdom (UK). The conference gathered more than 30 international legal experts and researchers from five universities from Europe, UK and USA, including the partner universities of the European Distance Education in Law Network – EDELNet (Universidad Nacional de Educación a Distancia, Spain, and Open Universiteit, Netherlands), who analyzed and discussed the expected repercussions of Brexit on a variety of legal subjects. The conference was opened by Prof. Dr. Peter Schiffauer (FernUniversität Hagen), former Head of the Secretariat of the EU Committee on Constitutional Affairs (2004-2014), who considered Brexit from the European constitutional point of view, and by Prof. Dr. Michael A. Lawrence (Michigan State University College of Law), who offered a transatlantic perspective. After this, the first panel of public lawyers presented some foreseeable legal consequences of the UK’s withdrawal regarding European citizenship and Human rights, and offered analysis of the process of withdrawal itself in the light of public international law. The second panel dealt with the regulatory impact on the internal market and the economic relations between EU Member States and the UK. This panel discussed issues related to company law, patent litigation, property law, comparative advertising and labour law. The third panel focused on environmental regulatory aspects, followed by the fourth panel which addressed problems of judicial cooperation in civil matters in post-Brexit times. The conference was linked to the Dies Academicus ceremony of the FernUniversität in Hagen, on 10 November 2017, where Prof. Dr. Andreas Haratsch wrapped-up the conference discussions in a thought-provoking presentation about the democratic principle in the aftermath of Brexit. Some of these contributions are collected in this publication. All other speeches delivered during the conference were recorded and are available to the public at http://www.fernuni-hagen.de/videostreaming/rewi/vortraege/20171108.shtml. The editors would like to thank the contributors to this book for their valuable efforts as well as the Rector of the FernUniversität in Hagen, Prof. Dr. Ada Pellert, for her patronage and the staff of the Dean´s office of the Faculty of Law for their helpful support in the organization of the conference. Particular thanks are due in this regard to Alina Herzog, Gleb Sakovski, Martin von Hadel and Denis Hadzalic. Finally, we warmly thank Gleb Sakovski and Niklas Wetzel for their valuable assistance in editing the texts of this book. Karl August Prinz von Sachsen Gessaphe, Juan J. Garcia Blesa and Nils Szuka The Constitutional dimension of Brexit 9 – Prof. Dr. Peter Schiffauer A Transatlantic Perspective on Brexit 55 – Prof. Dr. Michael Lawrence The repatriation of exclusive competences from EU in post-Brexit United Kingdom 69 – Edwin Parks & Carol Howells Brexit – What’s Public International Law Got to Do With it 93 – Prof. Dr. Dominik Steiger & Wiebke Günther European Union Citizens in Post EU UK 121 – Anne Wesemann The uneasy nature of national citizenship 147 – Michiel van Oosterzee The Brexit and Human Rights 161 – Prof. Dr. Carla M. Zoethout Legal Implications of Brexit: The Right to Access Justice for EU Nationals in the UK 173 – Bünyamin Kaya, LL.M. Suspending the Rule of Law for Racial Minorities in Border Management? Racial Profiling in the Western Mediterranean and the Post-Brexit Irish Border 195 – Dr. Juan J. Garcia Blesa & Dr. Neil Graffin Brexit and Gibraltar: An approach to the Problem 215 – Prof. Dr. Pablo de Diego Ángeles The British exit from the EU– Legal consequences for European intellectual property rights 229 – Prof. Dr. Barbara Völzmann-Stickelbrock 7 The European Unified Patent Court and UK assumptions on its post- Brexit patent litigation 245 – Edwin Parks The Consequences of Brexit for Company Law 277 – Prof. Dr. Ulrich Wackerbarth The Consequences of “Brexit” in Company Law 287 – Priv.-Doz. Dr. Bernhard Kresse, LL. M. (Cologne/Paris), Maître en droit (Paris I – Panthéon-Sorbonne) Legal implications of Brexit regarding EU Common Market: Brexit and Intellectual Property Rights. Towards a refundation of EU? 305 – Prof. Dr. Eva Maria Dominguez Perez Discrimination based on nationality in German employment law – the position of British job applicants and employees after the Brexit 321 – Prof. Dr. Kerstin Tillmanns Inter-Company Transfer – The treatment of employee data within multinationals after the Brexit 339 – Dr. Paul Melot de Beauregard LL.M. (LSE), Munich Brexit and the Environment 351 – Hugh McFaul Brexit: what will happen with the EU Nature Laws? 365 – Dr. Sander Kole, LL. M. The impact of Brexit on the prorogation of jurisdiction in favour of British Courts under Regulation (EU) No 1215/2012 377 – Prof. Dr. Karl August Prinz von Sachsen Gessaphe The Choice of English Law after Brexit 399 – Dr. Frank Spohnheimer 8 The Constitutional dimension of Brexit Prof. Dr. Peter Schiffauer Dimitris Tsatsos Institut für Europäische Verfassungswissenschaften FernUniversität in Hagen, Germany I. Introduction The present paper examines the constraints flowing from constitutional law that affect the procedures and negotiations regarding the withdrawal of the United Kingdom from the European Union (EU) in accordance with the will expressed by a majority in the referendum of 23 June 2016. Possible sources of such constraints are the written or non-written constitutions of EU Member States, notably the constitution of the United Kingdom, and the basic ordinance of the European Union as established by the Treaty on European Union and the Treaty on the Functioning of the European Union1. The paper will, however, not discuss the theoretical question whether or not the European Union founding Treaties are of a constitutional nature2. The constraints described are certainly not insurmountable. National constitutions and likewise the EU founding treaties may be amended. But the requirements for enacting such amendments are so high that their use for avoiding any constraints of the withdrawal procedure is highly unlikely. In particular, as long as the Member States remain the masters of the EU-Treaties they cannot be denied the faculty to modify by an actus contratrius any obligation that may legally exist among them. Such actus contrarius would, however, need to be unanimously approved by all Member States and ratified in accordance with their respective constitutional requirements. Moreover the concrete contents of any such actus contrarius will have to respect basic principles like the rule of law or fundamental rights to which all European States are committed and which cannot be repealed by a 1 See OJ C 326 of 26.10.2012 for the latest available consolidated version which does not take into account the European Council decision of 25 March 2011 amending Article 136 TFEU (OJ L 91 of 6.4.2011 p. 1) and the Act concerning the conditions of accession of the Republic of Croatia and the adjustments to the Treaties (OJ L 112 of 24.4.2012 p. 21. 2 Cf. Carlos Rodriguez Iglesias, Zur ‘Verfassung’ der Europäischen Gemeinschaft, EuGRZ 1996, 125; Dimitris Th. Tsatsos, Die Europäische Unionsgrundordnung, EuGRZ 1995, 287. 9 lawful act. The following considerations will thus examine constraints existing under the constitutions of Member States and the EU’s basic ordinance as presently in force3. II. Multilateral Issues 1. The innovation of Article 50 TEU: Member States are not the Masters of withdrawal The entry into force of Article 50 of the Treaty on European Union – introduced by the Treaty of Lisbon – marks a turn in the constitutional history of the European Union.