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EU Law Full NotesWeek 1 / European Integration and Brexit
Levels of Integration
Not to be confused…
● The Council of Europe (1947)
○ 47 member states
○ 1950 - The European Convention on Human Rights (ECHR)
○ The European Court of Human Rights (Strasbourg)
○ Intergovernmental
○ Unanimity of all members.
● The European Union (EU) (1992) - EEC in 1957.
○ 28 member states - soon to be 27.
○ 2000 - Charter on Fundamental Rights (CFR)
○ The Court of Justice of the European Union (Luxembourg)
○ Intergovernmental and supranational
○ Unanimity and QMV (qualified majority voting)
Facts:
● Small economies: Ireland, Portugal, Greece
● 3rd largest EU economy: Italy
● 4th largest EU economy: Spain
● Last country to join = Lithuania (January 2015)
‘Sui generis’ entity - unique
● Article 4(2) TEU:
, ○ Heterarchy not hierarchy: ‘The Union shall respect the equality of Member
States before the Treaties…’
○ Sovereignty: ‘…as well as their national identities, inherent in their fundamental
structures, political and constitutional, inclusive of regional and local
self-government. It shall respect their essential State functions…’
○ Security: ‘…including ensuring the territorial integrity of the State, maintaining
law and order and safeguarding national security. In particular, national security
remains the sole responsibility of each Member State.’
EU constitutional texts post-Lisbon
● Grimm (2015): ‘Constitutions bring legitimate government into existence and formulate
the conditions for the exercise of public power.’ (p462)
● Treaty of Rome 1957 = Treaty on Functioning of the European Union (TFEU)
● Treaty on European Union (TEU) 1992 = Treaty on European Union (TEU)
● EU Charter on Fundamental Rights (CFR) 2000 = appended to Treaties; same legal
value as Treaties
Leaving the EU
● Pre-Lisbon
○ No express provision in EU Treaties
○ No implicit right: Costa v ENEL: ‘community of unlimited duration’; Treaty
concluded for an unlimited period
○ Art 50 TEU included in Convention to deflect criticism (1992)
● Post-Lisbon
○ Conditions of exit: 2 years to negotiate a Withdrawal Agreement
○ Content: details of exit; outline of future relationship
Is 2 years long enough? (Greenland = 3 years)
● Negotiate contours of future partnership
● Discuss new trade agreements with non-EU countries
● Parliamentary debate, reflection and vote
● Another referendum
● Make new national laws
Art 50 TEU - the process
● Leave - decision in MS.
● Trigger Art 50 - notify European Council.
○ Exit of MS if no agreement after 2 years.
● Negotiations - Council of Ministers, Commission.
● Consent - European Parliament.
● Exit - 2 years to agree date.
○ Extension.
50 (1): Any Member State may decide to withdraw from the Union in accordance with its own
constitutional requirements.
, ● Blunt - unconventional right.
● Vague - how to interpret?
● Risk - disintegration?
The EU-Referendum campaign: complex truths, simple lies
● Nigel Farage: £350 million pledge to fund the NHS was 'a mistake’
● http://www.telegraph.co.uk/news/2016/06/24/nigel-farage-350-million-pledge-to-fund-the-
nhs-was-a-mistake/
Referendum Results
● Remain: 16,141,241 (48.1%)
● Leave: 17,410,742 (51.9%)
● Total Electorate: 46,500,001
● Turnout: 72.2%
● Non-voters: 27.8%
Opt-in to Europol – Nov 2016
● Minister for Policing and the Fire Service Brandon Lewis:
○ “The UK is leaving the EU but the reality of cross-border crime remains. Europol
provides a valuable service to the UK and opting in would enable us to maintain
our current access to the agency, until we leave the EU, helping keep the people
of Britain safe.
May’s Brexit Action Plan and White Paper
● Outline
● 12 priorities
● http://www.telegraph.co.uk/news/2017/01/17/theresa-may-warns-eu-will-walk-away-bad-
deal-britain/
● White Paper: ‘freest trade possible’
● Post CJEU dispute resolution systems
● https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/589191/Th
e_United_Kingdoms_exit_from_and_partnership_with_the_EU_Web.pdf
50 (2): A Member State which decides to withdraw shall notify the European Council of its
intention. In the light of the guidelines provided by the European Council, the Union shall
negotiate and conclude an agreement with that State, setting out the arrangements for its
withdrawal, taking account of the framework for its future relationship with the Union. That
agreement shall be negotiated in accordance with Article 218(3)* of the Treaty on the
Functioning of the European Union. It shall be concluded on behalf of the Union by the Council,
acting by a qualified majority, after obtaining the consent of the European Parliament.
● Art 218 (3) - The Commission submits recommendations to the Council, the Council
adopts a decision authorising the opening of negotiations and nominating the Union
negotiator or the head of the Union’s negotiating team.
Slide 18:
, ● ‘European leaders rule out informal Brexit talks before Article 50 is triggered’
● High Court & UKSC – Parliament vote on triggering Article 50
● Case 2 – Parliament final vote on negotiated deal
European Union (Notification of Withdrawal) Act 2017
● Power to notify withdrawal from the EU
1. The Prime Minister may notify, under Article 50(2) of the Treaty on European
Union, the United Kingdom’s intention to withdraw from the EU.
2. This section has effect despite any provision made by or under the European
Communities Act 1972 or any other enactment.
Case C-621/18 Wightman and Others v Secretary of State for Exiting the EU (full court) (Dec 10
2018)
● Article 50 TEU must be interpreted to mean that where Art 50 has been triggered, as
long as
○ a withdrawal agreement between the Member State (MS) and the EU has not
entered into force or,
○ the two-year period in Article 50(3) TEU, possibly extended, has not expired
● A MS may ”revoke that notification unilaterally, in an unequivocal and unconditional
manner, by a written notice to the European Council “after the Member State concerned
has taken the revocation decision in accordance with its constitutional requirements”
● Revocation
○ confirms EU membership of the Member State under terms that are unchanged
as regards its status as a Member State
○ brings the withdrawal procedure to an end
When does the MS state actually exit?
● 50 (3): The Treaties shall cease to apply to the State in question from the date of entry
into force of the withdrawal agreement or, failing that, two years after the notification
referred to in paragraph 2, unless the European Council, in agreement with the Member
State concerned, unanimously decides to extend this period.
Conduct of negotiations: UK also absent from EP?
● (1) ..the member of the European Council or of the Council representing the withdrawing
Member State shall not participate in the discussions of the European Council or Council
or in decisions concerning it. A qualified majority shall be defined in accordance with
Article 238(3)(b)* of the TFEU.
○ *Article 238(3)(b) TFEU – when the Council does not act on a proposal from the
Commission or the High Representative for Foreign Affairs and Security Policy,
qualified majority = at least 72% of the members of the Council representing
Member States comprising at least 65% of the population of these States.
The N. Ireland ‘Backstop’
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