Europe After Brexit (Pdf)
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EU3D Insights 25 November 2019 Europe after Brexit Andrew Duff1 No country was ever meant to leave the European Union. In that sense, the Andrew Duffis EU was an experiment condemned to President of the Spinelli Group succeed. And in that same sense, Brexit is and Visiting a massive failure of the European project. Fellow at the The departure of the UK will leave the EU European smaller and poorer, with its reputation on Policy Centre, the world stage undeniably diminished. Brussels. He was a Liberal Member The extent to which Brexit poses a of the European fundamental risk to the Union is badly Parliament 1999-2014. He was a member underestimated in London. In other of the Convention on the Charter capitals, the fear persists that another of Fundamental Rights and of the EU leader may one day follow the British Convention on the Future of Europe, as example and demand a renegotiation of well as Parliament’s representative at the terms of membership for futile or spurious Intergovernmental Conference on the reasons. Treaty of Lisbon. Duff is a member of EU3D’s Advisory Board. It is not too early, therefore, to try to draw some lessons from Britain’s costly, long federal union). Whether or not the clause drawn-out and painful process of leaving was ever intended to be used is academic: in order that the same mistakes are not opinions in the Convention on the Future repeated. We may not yet know quite how of Europe differed, and both Greece or when the UK will finally depart. But we and Britain were floated as potential certainly know why it wants to leave. So candidates for secession. It was agreed we may learn from Brexit something more to have a provision which provided for a about what kind of a polity is the EU, and voluntary democratic exit with the implied about how the EU should treat its close but nonetheless clear understanding that neighbours in the years to come. no state could or should ever be expelled from membership against its will. The Article 50 Convention’s president, Valéry Giscard Article 50 of the Treaty on European d’Estaing, proposed the two-year time limit Union (TEU), which governs how a state in order to minimise collateral damage to should leave the Union, was inserted into those states remaining. the Constitutional Treaty of 2004 with the support of both federalists (wanting From the outset it was clear that Article 50 renegade states to leave the federal union) was more about defending the interests and nationalists (wanting liberation from of the EU than aiding and abetting the EU3D Insights p. 1 departing member state. It is wrong to mandate to reach a withdrawal agreement draw too strict an analogy between Article with the UK. It did not draft texts on behalf 50 and Article 49 TEU, which regulates of the UK government even when it could the accession of a new member state. The easily – and helpfully – have done so. EU is committed in spirit and in law to widen its membership. In the past, it has Cameron’s legacy 2016 proselytised in the hope of recruiting more The EU’s officially cool position was much members. Article 49 establishes elaborate influenced by its recent bad experience but systematic processes by which a of coping with the British. Lessons were candidate state is pulled towards and drawn from David Cameron’s damaging across the threshold of membership. renegotiation of the UK’s terms of membership in the course of which Not so Article 50, whereby the errant state the European Council made too many is enjoined before leaving to agree to the concessions. Britain’s ‘New Settlement’ of terms of its withdrawal: if no agreement its relations with the EU was concluded is reached, the EU treaties simply cease in February 2016 after laborious and to apply to that state two years after it fractious negotiations. The EU made a triggered the formal process. The main well-meaning but vain attempt to rescue purpose of Article 50, then, is to allow the prime minister from the plight of his the EU to cut its legal and political links, own making.3 Had the new arrangements leaving the erstwhile partner to its own ever entered into force, it is likely that the devices. Pointedly, Article 50(4) recalls UK, as a disaffected and insincere member that if a state which has withdrawn asks to state, would have been a continuing source rejoin, it must use the route provided by 2 of discord for many years to come. In his Article 49. memoirs, Cameron confesses: Implicit in the European Union’s Article “At heart, the ambition of my plan was 50 process is the assumption that the simple: to shift the EU from its long-held departing state knows why it is leaving view that all its members were travelling and where it intends to end up having towards the same destination, but at left. That is why Article 50(2) speaks of different speeds, and that Britain, the the need to settle the state’s withdrawal reluctant European, would get there in the arrangements “taking account of the end. I wanted to get it across, once and framework for its future relationship with for all, that the UK was not only travelling the Union”. It is not the fault of the EU, still at a different speed, but that we had a less of the drafters of Article 50, that the different destination in mind altogether. UK transpired not to have the faintest idea ‘Yes’ to trade and cooperation, but ‘no’ — what it wanted to do post-Brexit. But nor indeed never — to political union, currency was it the job of the EU to rescue the UK union, military union or immigration from its own folly. union.”4 The EU did its best to accommodate the In particular, granting Cameron his UK’s confusing and contradictory red most cherished prize of a British opt-out lines without compromising its own core from the historic mission of “ever closer principles. The Commission, especially, union” was a gross error with potentially has retained studious neutrality over devastating consequences for the Union’s Brexit. Its Task Force 50, led by Michel future cohesion and solidarity. Thanks Barnier, focussed on accomplishing its EU3D Insights p. 2 to Charles Michel, the Belgian prime orderliness, not found in Article 50 itself. minister, a late clause was added to the New Settlement that made the whole “In the future, we hope to have the UK package deal null and void should the as a close partner of the EU and we look British people, in their wisdom, reject it. forward to the UK stating its intentions in As they did. The constitutional integrity this respect. Any agreement, which will be of the Union was at least preserved, and concluded with the UK as a third country, the prospect of rows with the European will have to be based on a balance of Parliament and litigation at the European rights and obligations. Access to the Single Court of Justice over the implementation Market requires acceptance of all four of the New Settlement was avoided. freedoms.” The explicit insistence on balancing rights The referendum and obligations was novel, indicating Cameron’s botched renegotiation had at to all concerned that the UK as a third least served to ready Brussels for a Leave country could not expect more rights than vote. The referendum took place on 23 it had when a member state. Access to the June 2016. Presidents Tusk and Juncker internal market would depend on Britain’s issued a press communiqué the following ability to respect, and to be seen to respect, day: the level playing field.5 The assertion of “We regret this decision but respect it the indivisibility of the four principles of … We now expect the United Kingdom freedom of movement was an elaboration government to give effect to this decision of existing treaty provisions made in the knowledge that the UK wanted to restrict of the British people as soon as possible, 6 however painful that process may be. immigration from the EU. Any delay would unnecessarily prolong Guidelines and core principles 2017 uncertainty. We have rules to deal with this in an orderly way.” Backed by her Parliament, Theresa May wrote to President Tusk on 29 March 2017 On 29 June, the European Council minus instigating the formal process of Article Mr Cameron agreed on a statement drafted 50.7 Again the EU moved quickly to instil largely by Jeppe Tranholm-Mikkelsen, discipline and direction into the Brexit Secretary General of the Council. It business. The European Council published established the ground rules for the seminal guidelines on 24 April: deployment of Article 50: “[T]he Union’s overall objective in these “There is a need to organise the negotiations will be to preserve its withdrawal of the UK from the EU in an interests, those of its citizens, its businesses orderly fashion. Article 50 TEU provides and its Member States … With this in the legal basis for this process. It is up mind, we must proceed according to a to the British government to notify the phased approach giving priority to an European Council of the UK’s intention orderly withdrawal … Throughout these to withdraw from the Union. This should negotiations the Union will maintain be done as quickly as possible. There can its unity and act as one with the aim of be no negotiations of any kind before this reaching a result that is fair and equitable notification has taken place.” for all Member States and in the interest of its citizens.