Development of the EU

Development of the EU

• The Treaty of Paris in 1951 established the European Coal and Steel Community (ECSC) to provide protection after the war. ECSC was an international organization.
• The Treaty of Rome in 1957 created the European Economic Community (EEC) and EURATOM as separate organizations. Founding states also signed the European Atomic Energy Community Treaty (the Euratom Treaty), which regulated nuclear power.
• In 1993, the Treaty of Maastricht transformed the EEC into the European Community (EC) and established the EU; however, the EU was not yet an independent international organization. The treaties in force were the EC Treaty and the TEU 1992.
• The Treaty of Lisbon in 2009 replaced the EC with the EU as an independent international organization; the EC Treaty became the Treaty on the Functioning of the European Union (TFEU), and the Treaty on European Union (TEU) was established in 1992.

Development of EU Membership

• Founding members in 1958: Belgium, France, Germany, Italy, Luxembourg, and the Netherlands.
• Joined in 1973: Denmark, Ireland, and the UK.
• Joined in 1981: Greece.
• Joined in 1986: Portugal and Spain.
• Joined in 1995: Austria, Finalnd and Sweden.
• Joined in 2004: Cyprus, Czechia, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia, and Slovenia (eastward enlargement).
• Joined in 2007: Bulgaria and Romania.
• Joined in 2013: Croatia.

Brexit Timetable

• A referendum in 1975 showed 67% support for continued membership in the EU.
• A referendum on June 23, 2016, resulted in 51.9% voting to leave the EU.
• TEU art 50(1) allows any member state to withdraw from the EU according to its constitutional arrangements
• The turnout for the Brexit referendum was 72.2%.

Brexit Procedure

• TEU art 50(1) requires a member state to notify the European Council of its intention to withdraw.
• The UK gave notice to leave on March 29, 2017, which required an act of Parliament (R(Miller) v Secretary of State for Exiting the EU ‘Miller 1’).
• A two-year negotiation period started to agree on withdrawal terms, which was extended by agreement.
• TEU art 50(2) states the EU must negotiate and conclude an agreement, considering the framework for future relations.
• The Withdrawal Agreement covered the UK's departure from the EU and the European Atomic Energy Community.

European Union (Withdrawal) Act 2018

• Key statute on structural matters, amended by the Withdrawal Agreement Act 2020. It repealed the European Communities Act 1972 and made provisions connected with the UK's withdrawal from the EU.
• The act was passed before any withdrawal agreement had been reached with the EU.
• Theresa May's government agreed to a draft withdrawal agreement with the EU in November 2018, but it was initially not approved by the UK parliament (rejected 3 times). Theresa May was prime minister from 13 July 2016- 24 July 2019.
• Boris Johnson's government agreed to a new withdrawal agreement in November 2019, leading to the EU (Withdrawal Agreement) Act 2020, which amends the 2018 act.
• The UK formally left the EU on January 31, 2020.

Brexit Begins – The Legal Trigger

• Article 50(1) of the TEU allows any EU country to leave after formal notification.
• The UK gave notice on March 29, 2017.

Miller 1 Case – Parliament Approval

• The UK government couldn’t trigger Article 50 independently.
• The UK Supreme Court ruled in R (Miller) v Secretary of State for Exiting the EU that Parliament's approval was necessary due to significant legal changes. An Act of Parliament was then passed to officially notify the EU.

Negotiation Period

• A two-year negotiation period started upon notice, with potential extensions.
• Article 50(2) TEU required agreement on withdrawal terms and a framework for future relations.

Withdrawal Agreement

• The agreement outlined citizen rights, the financial settlement, Northern Ireland border arrangements, and transition period rules.

European Union (Withdrawal) Act 2018

• This law prepared the UK's legal system for leaving the EU.
• It repealed the European Communities Act 1972 and copied over EU law into UK law.
• The act was passed as a precaution before there was a final deal with the EU.

Theresa May’s Withdrawal Agreement

• Theresa May's draft deal in November 2018 was rejected by Parliament three times.
• Theresa May was PM from 2016 to 2019.

Boris Johnson’s Withdrawal Agreement

• Boris Johnson negotiated a new Withdrawal Agreement in October 2019, which was approved by Parliament.
• The European Union (Withdrawal Agreement) Act 2020 was passed to update the 2018 Act and put the new deal into law.

The UK Leaves the EU

• The UK officially left the EU on January 31, 2020, with a transition period until December 31, 2020.
• EU rules still applied during the transition period.

Why a Domestic Act Was Needed to Implement the Withdrawal Agreement

• The UK follows a dualist approach where international and domestic law operate independently.
• Treaties must be transposed into domestic UK law through legislation or common law.
• Miller v Secretary of State for Exiting the EU 2017 established that international and domestic law operate in independent spheres, and treaties between sovereign states have effect in international law, but are not part of UK law.
• France follows a monist approach where public international law and domestic law are part of the same legal order.

European Union (Withdrawal Agreement) Act 2020: Chapter 1

• It implements the agreement between the UK and the EU under Art 50(2) of TEU, which sets out the arrangements for the UK's withdrawal from the EU.

Brexit Legal Effects

• UK left the EU on January 31, 2020, at 11:00 PM.
• The UK ceased involvement in any EU institutions, such as the European Commission (last EU commissioner from UK: Julian King (Security), and the Court of Justice of the EU, including advocates general.
• A transition period lasted until December 31, 2020, during which EU law still applied, and the UK was treated as a member state (except for participation in EU institutions).

Brexit Legal Effects – After the Transition Period (January 1, 2021)

• The UK was no longer bound by EU law from January 1, 2021.
• Primary and secondary EU law ceased to have effect in UK as a rule The Eurotom treaty, regulations etc.)
• Initially, most secondary EU law was retained as ‘retained EU law.’
• To ensure legal certainty and continuity, retained EU law kept many of the special features of EU law such as primacy over other inconsistent domestic laws.
• It also had to be interpreted in accordance with general principles of EU law and relevant EU court of justice case law.
• Some secondary law could not be retained (like the brussels I Recast Regulation): falling back to domestic rules if any.
• Some secondary EU law was replaced by new domestic UK rules.
• Now: ‘assimilated EU law’

After Brexit – Current Status

• Retained EU Law (Revocation and Reform) Act 2023 (Brexit Freedom Bill).
• Under REUL act, REUL which has not been revoked by the end of 2023 became ‘assimilated law’ as of 1 january 2024.
• A lot of retained EU law was retired.
• The REUL act revoked hundreds of pieces of retained EU law at the end of 2023 (including almost 600 pieces of legislation, listed in schedule 1 of the act).
• The Act also gave ministers power to amend or revoke retained EU law.
• Some saving powers for UK government – seven pieces of REUL were saved through the Retained EU Law (Revocation and Reform) Act 2023 (Revocation and Sunset Disapplication) Regulations 2023.
• Key difference of assimilated EU law to retained EU law: assimilated law is not interpreted in line with EU principles of interpretation.
• Current discussion: assimilated law reform.
• Proposed moved to more convergence with EU law, but only with regard to product regulations: product regulation and metrology bill (PRM bill).
• The bill, if enacted, would give the Secretary of State specific powers to keep pace with changes to existing EU product regulations and with new EU product regulations addressing the risks, products and technologies which are not already covered by assimilated law.

Brexit Legal Effects

• The UK is no longer part of the customs union and the single market.
• Competences conferred on the EU are now back with the UK.
• The UK can now make its own decisions on matters previously dealt with by the EU (international trade deals, agriculture policy, VAT, fisheries).
• Many powers had been transferred from the UK to the EU when it was still a member state of the EU
• Areas of exclusive competence (EU only) (TFEU art 2(1). Examples: TFEU art 3(1): customs union; establishing of the competition rules necessary for the functioning of the internal market; monetary policy for the EU member states whose currency is the Euro. E.g. TFEU art 30, does not apply anymore to the UK (like the rest of the TFEU)
• Areas of shared competence (EU and MS) (TFEU Art 2(2)) In this case, the principle of subsidiarity applies (Art 5(3) TFEUL the union shall only act for the EU MS as a ‘last resort’. Examples, tfeu art 4: internal market; agriculture and fisheries, environment, consumer protection

Arrangements of the UK with the EU

• Governed by two international instruments: the Withdrawal Agreement (including the NI Protocol) and the Trade and Cooperation Agreement.

Withdrawal Agreement (Includes NI Protocol)

• ‘The withdrawal agreement ensures that the United Kingdom leaves the European Union in an orderly manner.’
• It contained rules for areas where the UKs withdrawal from the EU created legal uncertainty:
• Citizen rights
• The financial settlement
• A transition period at least until the end of 2020
• The withdrawal agreement also includes the NI protocol.

UK-EU Trade and Cooperation Agreement

• Entry into force: 1 May 2021.
• Applied provisionally as of 1 Jan 2021.
• A free trade agreement between the UK and the EU (and Eurotram).
• No tariffs (customs duties)(or equivalent charges) applied to goods moving between the EU and the UK if they fulfil rules of origin.
• No quantitative restrictions on imports/exports of goods between EU and the UK if they fulfil rules of origin.
• (P) origin certificates required.

Northern Ireland Protocol – Basics

• The UK is no longer part of EU, therefore there must be a border between them (including between UK and Ireland).
• It is unacceptable to have effective border between Northern Ireland and Ireland
• Equally unacceptable to have effective border between UK, NI, and Great Britain
• These three position cannot stand together
• NI essentially part of both EU and UK single markets
• Bound by many of the rules of EU market.
• Must keep up with any changes in EU law
• No need for controls between NI and Ireland as both in EU market.
• But controls between GB and NI to avoid it becoming a way of entering EU market whilst avoiding all EU rules (many not yet implemented).

What Does the UK Want to Change?

• Under the Brexit deal, certain goods have to be checked when they enter Northern Ireland from Great Britain.
• Goods are checked at ports of Northern Ireland on arrival.
• They can be then moved into the Republic of Ireland once checked.

Northern Ireland Protocol Issues

• The effect of NI protocol on relationship between UK and NI was highly contentious.
• Proposed solution: the Windsor Agreement.
• It was unclear for a long time whether a new deal would be accepted to democratic unionist party.
• The goods are split into two different lanes; goods destined for Northern Ireland go into the green lane meaning the wouldn’t have to be checked and would require minimal paperwork; goods destined for Ireland and the EU go into red lane and checks are carried out.

Could the UK Rejoin

• TEU art 50(5): ‘if a state which has withdrawn from the union asks to rejoin, its request shall be subject to the procedure referred to in article 49’
• TEU art 49: standard procedure for any state to join the EU
• ‘Any European state which represents the values referred to in art 2 TEU and is committed to promoting them may apply to become a member of the union’
• The European Parliament and the national parliaments of the other EU member state shall be notified
• Application addressed to the Council European Union: unanimous decision needed; also
• Consultation of the commission
• Consent of the European Parliament (majority decision)