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new school year: orientations and brexit August 16, 2016

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We had a day of living law talks yesterday as part of our orientation for the new 1Ls. I went to some of my colleagues’ fascinating presentations – there were others I would have liked to see but couldn’t. I talked about Brexit. Here is more or less what I said (there were some interesting questions which aren’t reflected here):

Will Brexit break the EU?
UK citizens voted for Brexit in June. What actually happens next, however, will be the product of the incomplete text of the EU treaty, and political, rather than legal, negotiations which may end up changing UK law. In the meantime, businesses will need to take account of the new uncertainties in planning their actions and in their contracts. This talk begins to explore just how lawyers will help businesses do that.

I want to talk about Brexit in three separate ways: in terms of perspective or viewpoint; by thinking about lawyers’ interests in the issue, and in terms of how transactional lawyers rather than litigators may think about Brexit.

The UK held a referendum in June 2016 in which a majority of the voters voted to leave the EU. There were regional variations in the result, for example in Scotland a majority of voters wishes to remain, and younger voters tended to want to remain whereas older voters said they wanted to leave the EU. The referendum result raises huge numbers of questions for academics and for practising lawyers. For me personally it raises the question whether it makes sense to carry on teaching EU law.

For a political scientist, here are some of the issues the Brexit vote raises: How did this happen? What are the implications for uses of referendum in future – in the UK, and in other countries? How do the facts that led to the UK vote affect voters in other EU member states? Here I mean austerity, worries about immigration, security, lack of hope about the future (some issues that are visible in the US in the context of the upcoming election). How does Brexit affect international relations and geopolitics?
What are the implications for transnational governance more generally? The development of the EU is part of a more general development of institutions of transnational governance since the second world war. Over time the EU has gone through a process of widening and deepening, expanding its membership and intensifying relationships between the Member States. A UK exit would be the first time a Member State has left the EU. It would be a step backwards.

I think lawyers also are and should be concerned with these issues. They are clearly issues that some academic lawyers care about, but they are also issues that should concern lawyers involved in the practise of law.

Lawyers are also going to be interested in some more technical legal questions. For example, the EU Treaty provision that deals with withdrawal of a Member State has been in effect only since 2009 and has never been used. It imagines that the Member State would give a notification of its intention to withdraw, and imagines negotiations of terms of withdrawal. The Member State would leave after 2 years unless a negotiation culminated in agreement before then or the 2 year period were extended by the other Member States unanimously and the leaving state. There are gaps in the provision: it does not say anything about whether or when a Member State might be required to notify, or whether a notification could be withdrawn. The terms of withdrawal can be agreed by a qualified majority of remaining states but the terms of any ongoing relationship would need unanimous agreement. There are many legal uncertainties.
For UK government lawyers there are some other issues. For example there are questions about who has the power to decide that the UK should make the notification. Is it a matter for the Government or for Parliament. There is ongoing litigation about this question. And there is litigation about whether the UK can in fact leave the EU, for example it is argued that the Northern Ireland peace accord, the Good Friday Agreement should prevent this step.

For me, as an academic interested in relationship between money law and geography, the most interesting question relates to the implications of Brexit for London as a financial centre. Is being part of the EU single market crucial for the UK or not?

Brexit leads to some very practical questions for lawyers advising clients. UK citizens working in other EU Member States and citizens of other EU member states living and working in the UK want to know what their rights are.

Business lawyers need to think about how to identify the risks a business is subject to, and how to deal with or minimize risks. As the law changes they need to think about how to adjust to new rules. And they need to imagine how the law may evolve and react, for example by responding to proposals for changes to the law, and by thinking about what you can do with contract terms when the unexpected happens.

From the perspective of contracting, Brexit is a lesson in the need to plan for the unexpected. Of course this only leads to the next question of how you do this. But lawyers do need to be thinking about the question we started with: will Brexit break the EU?

eu law June 25, 2016

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This past semester I taught EU law for the first time since 2012 although it was a regular part of my teaching since I came to Miami for a long time until I began teaching contracts. Over the years I have written a number of articles which focus on or refer to EU law. I studied European Community Law before there even was a European Union. All of a sudden I belong to a country which is going to leave that Union. And although I can understand that some people might think that one can teach EU law generally – direct effect, supremacy, free movement without a sense of the domestic law context in which EU law operates, for me it was always important to have an idea about the relationship between EU law and a domestic legal system. And the one I knew about was the UK (well, England and Wales). So probably if I teach EU law in the future it will be a different sort of EU law course from the one I taught for many years.
This past semester I asked my students to read speeches by Lady Justice Arden and Lord Mance – provocative and interesting speeches with ideas about the future development of EU law. Ideas which will be lost.

day 1 after brexit vote June 24, 2016

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Market chaos (Mark Carney tries to calm the waters). Political chaos: Cameron resigns and the potential successors are intensely depressing. The UK is described (convincingly) as a “post-factual democracy”. The result was very close, but you can’t really tell from most of the reactions of the people who campaigned for Brexit. So there are inter-generational tensions: many young voters feel let down: over 70% of voters aged 18-24 supported remaining in the EU. And two very different views of what the UK is and should be: connected to and involved with the rest of the world, or stuck in a dream of once splendid isolation.

brexit – into uncharted territory June 24, 2016

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The BBC says that 52% of UK voters voted to leave the EU and 48% voted to remain. Winners take all – or rather lose all and impose significant losses on everyone else. The pound fell to the lowest rate against the dollar since 1985. Keith Vaz said the result was terrible. Nigel Farage said it was a victory for real people, ordinary people, decent people (I suppose the 48% who voted for remain are not real, ordinary, or decent). But all those people who believed they were taking back control are about to discover that it was all an illusion and they are even worse off than they were before. If Scotland becomes independent and joins the EU I wonder if I could get a Scottish passport (my mother was born in Edinburgh)?

rule of law and politics November 11, 2014

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THe EU’s Court of Justice held in Elisabeta Dano, Florin Dano v Jobcenter Leipzig (Case C-333/13) that EU rules on social security schemes do not prohibit Member States from excluding

nationals of other Member States… from entitlement to certain ‘special non-contributory cash benefits’ … although those benefits are granted to nationals of the host Member State who are in the same situation, in so far as those nationals of other Member States do not have a right of residence under Directive 2004/38 in the host Member State.

Ms Dano, a Romanian national, and her son, had been living in Leipzig with Ms Dano’s sister. She challenged a denial of non-contributory benefits. The Court noted the general principle of non-discrimination but that a particular derogation in the relevant EU rules:

it must be pointed out that, whilst Article 24(1) of Directive 2004/38 and Article 4 of Regulation No 883/2004 reiterate the prohibition of discrimination on grounds of nationality, Article 24(2) of that directive contains a derogation from the principle of non-discrimination.
Under Article 24(2) of Directive 2004/38, the host Member State is not obliged to confer entitlement to social assistance during the first three months of residence or, where appropriate, the period of seeking employment, referred to in Article 14(4)(b) of the directive, that extends beyond that first period, nor is it obliged, prior to acquisition of the right of permanent residence, to grant maintenance aid for studies to persons other than workers, self-employed persons, persons who retain such status and members of their families.
It is apparent from the documents before the Court that Ms Dano has been residing in Germany for more than three months, that she is not seeking employment and that she did not enter Germany in order to work. She therefore does not fall within the scope ratione personae of Article 24(2) of Directive 2004/38.

Ms Dano had been in Germany for more than three months but less than five years. In these circumstances the Court said:

To accept that persons who do not have a right of residence under Directive 2004/38 may claim entitlement to social benefits under the same conditions as those applicable to nationals of the host Member State would run counter to an objective of the directive, set out in recital 10 in its preamble, namely preventing Union citizens who are nationals of other Member States from becoming an unreasonable burden on the social assistance system of the host Member State…. the applicants do not have sufficient resources and thus cannot claim a right of residence in the host Member State under Directive 2004/38. Therefore…they cannot invoke the principle of non-discrimination in Article 24(1) of the directive.

In the UK, where migration within the EU is a hot topic, Cameron said he would be looking closely at the judgment to see what he could do with it. The sort of careful parsing of the rules illustrated by the judgment isn’t inevitably what we see from the Court of Justice, but in an environment where concerns about immigration threaten the stability of the EU it isn’t surprising to see a careful rather than an ambitious approach to interpretation of the requirements of EU law.

court of justice distinguishes kükükdeveci January 15, 2014

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In Association de médiation sociale v Union locale des syndicats CGT, the Court of Justice of the EU (Grand Chamber) has held that Article 27 of the EU’s Charter of Fundamental Rights cannot be invoked in a dispute between individuals in order to disapply a provision of national law implementing Directive 2002/14/EC which is incompatible with EU law.

The Directive established a general framework for informing and consulting employees (“employee is defined as “any person who, in the Member State concerned, is protected as an employee under national employment law and in accordance with national practice.”) Article 3(1) of the Directive limited the application of the Directive as follows:

This Directive shall apply, according to the choice made by Member States, to: (a) undertakings employing at least 50 employees in any one Member State, or (b) establishments employing at least 20 employees in any one Member State. Member States shall determine the method for calculating the thresholds of employees employed.

Article L. 1111-3 of the Code du Travail establishes rules for calculating the relevant number of employees for the purposes of the Directive. A dispute arose as to whether the Association de médiation sociale (AMS) was subject to the Directive’s requirements. The Court of Justice held that the French rules were incompatible with the Directive:

An interpretation of Directive 2002/14 according to which Article 3(1) thereof allows the Member States to exclude from the calculation of the staff numbers of the undertaking a specific category of workers on grounds such as those put forward by the French Government in the case in the main proceedings is incompatible with Article 11 of that directive, which requires Member States to take all necessary steps enabling them to guarantee the results imposed by Directive 2002/14, in that it implies that the States would be allowed to evade that obligation to reach a clear and precise result imposed by European Union law … it must therefore be concluded that Article 3(1) of Directive 2002/14 must be interpreted as precluding a national provision, such as Article L. 1111-3 of the Labour Code, under which workers with assisted contracts are excluded from the calculation of staff numbers in the undertaking when determining the legal thresholds for setting up bodies representing staff.

Article 3(1) of the Directive was capable of producing direct effects, but not between private parties (which AMS is, as “an association governed by private law, even if it has a social objective”). The Court then considered whether Kükükdeveci (where a national court was instructed to apply the general principle of non-discrimination on grounds of age, as given expression in a directive, disapplying contrary provisions of national law if necessary) might help. It didn’t. Art 27 of the Charter provides:

Workers or their representatives must, at the appropriate levels, be guaranteed information and consultation in good time in the cases and under the conditions provided for by Union law and national laws and practices

The Court said:

the facts of the case may be distinguished from those which gave rise to Kücükdeveci in so far as the principle of non-discrimination on grounds of age at issue in that case, laid down in Article 21(1) of the Charter, is sufficient in itself to confer on individuals an individual right which they may invoke as such.

The Court suggests that a damages remedy might be available in these circumstances – the usual next step, although I don’t know how useful it would in fact be in such a case. And there isn’t much in the judgment to allow us to know which general principles will merit Kükükdeveci treatment and which will not.

eu citizen participation and the european ombudsman April 19, 2013

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On April 23 the European Ombudsman is organizing an event (focusing on solving the economic crisis and building a clean and healthy Europe) at the European Parliament:

to help focus on European citizens and how they can concretely contribute to shaping the European Union, either by using the European Citizens’ Initiative (ECI), by turning to the European Ombudsman, or by mobilising large groups of citizens to carry out grassroots initiatives.

The event will be streamed live.

never-closer union? January 23, 2013

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Finally, that speech. From a man who heads up a government without a real electoral mandate, supported by MPs from another party who have ignored their own campaign promises, a vow to re-negotiate the UK’s relationship with the EU and ask UK voters what they think:

At some stage in the next few years the EU will need to agree on Treaty change to make the changes needed for the long term future of the Euro and to entrench the diverse, competitive, democratically accountable Europe that we seek.
I believe the best way to do this will be in a new Treaty so I add my voice to those who are already calling for this.
My strong preference is to enact these changes for the entire EU, not just for Britain.
But if there is no appetite for a new Treaty for us all then of course Britain should be ready to address the changes we need in a negotiation with our European partners.
The next Conservative Manifesto in 2015 will ask for a mandate from the British people for a Conservative Government to negotiate a new settlement with our European partners in the next Parliament.
It will be a relationship with the Single Market at its heart.
And when we have negotiated that new settlement, we will give the British people a referendum with a very simple in or out choice. To stay in the EU on these new terms; or come out altogether.
It will be an in-out referendum.
Legislation will be drafted before the next election. And if a Conservative Government is elected we will introduce the enabling legislation immediately and pass it by the end of that year. And we will complete this negotiation and hold this referendum within the first half of the next parliament.
It is time for the British people to have their say. It is time to settle this European question in British politics.

There’s a lot in the speech about the problems of having rules set in Brussels (as if the UK didn’t agree to the EU’s procedures for adopting new rules and didn’t participate in those procedures) and an invocation of the idea that “national parliaments ….are, and will remain, the true source of real democratic legitimacy and accountability in the EU.” Lots of tub-thumping rhetoric here without a secure basis in reality. And perhaps much more damaging to the UK in Europe than the handbag.

uk parliament discussing uk opt-out re crime January 9, 2013

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Martin Howe QC is discussing EU law today with two House of Lords EU sub-committees (video is here). Some of his examples of EU over-reaching are ridiculously aged. For example, he cited Defrenne v Sabena, a 1976 decision of the Court of Justice. Surely the time for protesting that decision is long past? The written evidence (much of which apparently addresses the benefits of UK involvement in EU policing and crime policy) is to be available tomorrow.

2013: european year of citizens January 2, 2013

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The European Year of Citizens has its own website. Georgios Papastamkos, Vice President of the European Parliament said:

EU is lacking a truly European public sphere. EU citizens should become the centre of the public debate of Europe’s future. It is high time the EU came closer to its citizens, firstly to listen and then to explain; explain that for more than half a century Europe has been a space of peace and friendship, rights and opportunities, mobility and exchanges, progress and prosperity, education and culture.