As the dust clears after the EU referendum, we face the challenge of how to separate the shared UK/EU legal framework. And that challenge is truly unprecedented, says Ignasi Guardans.
The European Union is essentially a community of law. It is certainly more than that, of course: it is also a community of values, based on a shared history (shared wars are also shared history) and, at least for those supporting it, a shared project. Much of the discussion in advance of the UK referendum, and the essential rationale beyond voters’ decision-making, was related to these immaterial, political and often emotional components of the European project. Law was left out of the debate, as a nuisance sometimes presented by contemptible 'experts', who should have no place interfering with the democratic debate.
But as the fog is lifting, the complexities of an intertwined European legal framework quickly re-emerge with the strength of a cork submerged by force. And many are discovering a United Kingdom (and, in a way, each of its citizens) linked to rest of the Union, its institutions and its other citizens by a highly sophisticated legal fabric knitted together for more than 40 years. Many are now realising that the EU is obviously not some sort of country club where you can cancel your membership, only to then try to negotiate access to the bridge playing room or the swimming pool on your own terms.
EU law touches on everything from chemical products safety regulation to industrial standards; from the right to benefit from a loan at the European Investment Bank to cross-border protection of family-related maintenance obligations; from the common recognition and enforcement of trademarks to the free movement of workers; from equal access to public procurement across the continent to airport slots and legal burdens to unload containers at an EU port; from free 'passporting' of financial services to the right to sell motorbikes without customs duties across the internal market. Each of these issues, and hundreds more, is not the result of a political handshake behind closed doors, but the effect of EU law, as implemented by a legal and judiciary system which includes the European Court of Justice.
Brexit requires unravelling this framework.
This unprecedented process can obviously only start once the decision to leave has been officially communicated by the UK Government to the European Council. After that, a negotiation with a fixed deadline of two years will begin; a negotiation which technically will only be authorised to deal with the ordained demolition of the legal construction supporting the existing UK-EU relationship.
Demolishing such a building will require cutting cables and connections, closing currently open doors and access routes, allocating common infrastructure, and apportioning the costs of such an exercise. While this process will be difficult and emotionally painful on occasions, it is feasible. However, it cannot happen in isolation. It must take into consideration at least the basic plans of the new legal building intended to replace the old one. The UK does not appear to want to alienate itself completely from the EU. Great Britain is not moving to somewhere in the Pacific: it will remain geographically and culturally within Europe. A new relationship will be negotiated with the Union and its remaining members, who may use this opportunity to further strengthen their integration in some areas. The negotiating parties will fight around a table to protect their political objectives, their social and economic interests and the rights of their citizens.
We do not yet know if such a new legal building will be inspired by the one hosting our Norwegian neighbours (it was conceived for a smaller occupant), or the Swiss one (nobody likes it really), or perhaps it will emerge from creative and completely new legal drawings. But if legal security is to be preserved, the task ahead is colossal: in many ways, it will be the equivalent to renovating an aeroplane in the middle of a flight. There is a lot of legal work ahead, both in the UK and in the EU. This includes those directly involved, those monitoring the process and, eventually, those who want to ensure that their needs or those of their clients are given due consideration during this extraordinary transition.
This blog was first published in the October 2016 edition of the Brussels Agenda, the newsletter of the UK Law Societies' Joint office in Brussels, which monitors EU policy and legislative developments and represents the profession towards the European institutions.
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