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Chinese Curses, Lawyers’ Dreams, Political Nightmares and New Dawns: Interesting Times for the UK’s Relationship with the EU
Published online by Cambridge University Press: 27 October 2017
Abstract
This chapter aims to explore some challenges that are likely to arise in the context of the UK’s present and future relationships with the EU. Three aspects come under scrutiny, namely the global opt-out available for the UK in the field of police and judicial cooperation in criminal matters (Protocol 36 to the Treaty on the Functioning of the European Union (TFEU)), the 2014 referendum on Scottish independence and the contemplated 2017 referendum on whether the UK should remain an EU Member State. The chapter stresses not only the importance of restoring objectivity in the debates surrounding these issues, but also the necessity of taking due account of the uncertainties that these processes unavoidably entail as to their end results for both the UK and Scotland.
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- Copyright © Centre for European Legal Studies, Faculty of Law, University of Cambridge 2013
References
1 While Chinese scholars are said not to have been able to identify a phrase or saying in Chinese that corresponds to the ‘curse’, one of the earliest identified references to its existence is a letter from Hughe Knatchbull-Hugessen, British Ambassador to China in 1936 and 1937.
2 The opt-out is created by art 10(4) and (5) of Protocol 36 on transitional provisions. In a letter addressed to the Select Committee of the European Union of the House of Lords in December 2011, the Home Secretary identified 133 measures subject to notification by the UK pursuant to art 10(4). For an up-to-date list, see the website of the Select Committee: www.parliament.uk/hleu.
3 The opt-out was exercised on 24 July 2013, see the letter to the Council of the EU from the UK permanent representative at http://register.consilium.europa.eu/pdf/en/13/st12/st12750.en13.pdf.
4 For a deep and critical analysis of the impact of the Act on the UK’s relationship with the EU, including the potential consequences of the ‘referendum locks’, see Gordon, M and Dougan, M, ‘The United Kingdom’s European Union Act 2011: “Who Won the Bloody War Anyway”?’ (2012) 37 European Law Review 3–30 Google Scholar.
5 In passing, it must be said that there are already some encouraging signs. The German President recently called on the UK to remain within the EU and is even reported as calling for English to become the sole working language for the EU institutions. See Connolly, K, ‘German President: Make English the Language of EU’ The Guardian (London, 22 February 2013)Google Scholar.
6 See A Arnull, C Barnard, A Biondi et al, ‘Europe, the Prime Minister, and the Facts—Seven Questions for David Cameron’. Available at: http://ukconstitutionallaw.org/2013/03/01/debaere-and-eeckhout-et-al-europe-the-prime-minister-and-the-facts-seven-questions-for-david-cameron.
7 Activation of this opt-out might not entail consequences for the UK only, but might also profoundly affect the Area of Freedom, Security and Justice as a whole. See Labayle, H, ‘ Within You, Without You: l’opt-out britannique en matière d’entraide répressive’ (2013) 2 Europe 6–11 Google Scholar.
8 See to this effect EU Select Committee, EU Police and Criminal Justice Measures: The UK’s 2014 Opt-out Decision (Thirteenth Report) (HL 2012-13, 159) 39. Available at: www.publications.parliament.uk/pa/ld201213/ldselect/ldeucom/159/159.pdf.
9 HM Government, Scotland Analysis: Devolution and the Implications of Scottish Independence (Cmd 8554, 2013). Available at: www.gov.uk/government/publications/scotland-analysis-devolution-and-the-implications-of-scottish-independence.
10 Ibid Annex A, ‘Opinion: Referendum on the Independence of Scotland—International Law Aspects’ 58.
11 See, for example, Council Regulation (EU) No 542/2010 of 3 June 2010 amending Decision 2008/839/JHA on migration from the Schengen Information System (SIS 1+) to the second generation Schengen Information System (SIS II) [2010] OJ L155/23. Considering that Decision 2008/839/JHA had been adopted under Title VI of the former Treaty on European Union, it would have been covered by the Protocol 36 opt-out in the absence of modification.
12 See Protocol No 21 to the TFEU, on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, at art 3–4a. The UK has, for instance, opted into the modified SIS II decision mentioned in the previous footnote.
13 Quoted by David Anderson QC in his evidence to the House of Lords Select Committee. See Oral and Written Evidence to EU Select Committee Thirteenth Report (n 8) at 3. Available at www.parliament.uk/documents/lords-committees/eu-sub-com-f/Protocol36OptOut/VolofevidenceP36asat250313.pdf.
14 Ibid.
15 WE Henley’s famous poem ‘Invictus’, culminating in the well-known couplet I am the Master of my fate: I am the Captain of my soul, was, appropriately, written by the young man shortly after he had lost the lower part of his left leg, which was amputated after a tuberculosis-induced infection.
16 Simon, D, ‘«Brexit (‘British Exit’)»: Inside, Outside, Offside?’ (2013) 2 Europe 2 Google Scholar.
18 See in particular the academic literature cited by Louis, J-V, ‘Le droit de retrait de l’Union européenne’ (2006) 3-4 Cahiers de droit européen 294, fn 5Google Scholar.
19 Ibid 293. See also Louis, J-V, ‘Union Membership: Accession, Suspension of Membership Rights and Unilateral Withdrawal. Some Reflections’ in Pernice, I and Zemánek, J (eds), A Constitution for Europe: The IGC, the Ratification Process and Beyond (Baden-Baden, Nomos, 2005) 223, 230–31Google Scholar.
20 It should be remembered that during the negotiations on the Maastricht Treaty, this formulation was preferred to one suggesting a federal process precisely because of the opposition of the UK. See Louis (n 18) 300.
21 See ibid 308. See contra Friel, RJ, ‘Secession from the European Union: Checking Out of the Proverbial “Cockroach Motel”’ (2004) 27 Fordham International Law Journal 592, 638Google Scholar.
22 Above n 10, 83.
23 Ibid 92 ff.
24 Thus, the Scotland analysis paper (n 8) 49 proposes that: ‘Future Scotland analysis papers in the series will examine the UK’s membership of key international organisations in further depth.’
25 Above n 10, 100.
26 See also the opinion of Sir David Edward, ‘Scotland and the European Union’ (Scottish Constitutional Futures Forum, 17 December 2012) paras 3–6. Available at: www.scottishconstitutionalfutures.org/OpinionandAnalysis/ViewBlogPost/tabid/1767/articleType/ArticleView/articleId/852/David-Edward-Scotland-and-the-European-Union.aspx.
27 Above n 10, 101.
28 See the answer given by M Barroso on behalf of the Commission to a written question of MEP Mara Bizzotto on the possibility of secession in a Member State and its impact on citizens, 28 August 2012, Parl Doc E-007453/2012.
29 On that understanding, art 50 TEU would cover not only the withdrawal of a Member State but also the withdrawal of part of a Member State.
30 Lane, R, ‘Scotland in Europe: An Independent Scotland in the European Community’ in Finnie, W, Himsworth, C and Walker, N (eds), Edinburgh Essays in Public Law (Edinburgh, Edinburgh University Press, 1991) 143, 154–55Google Scholar.
31 Sir David Edward (n 26) para 20, on the contrary, has suggested that Scotland would not have to apply for EU membership following its independence.
32 Building upon the Catalonian case, Professor Joseph Weiler recently argued that the accession of such a region after it has obtained its independence would have little chance of occurring because seceding from a state is at odds with the loyalty and solidarity ethos that lies at the basis of EU integration. See Weiler, JHH, ‘Editorial (Excerpt): Catalonian Independence and the European Union’ (2012) 23 European Journal of International Law 911 Google Scholar.
33 Louis (n 18) 300.
34 Case 26/62 Van Gend en Loos [1963] ECR 1, 12.
35 Case 43/75 Defrenne II [1976] ECR 455.
36 Case C-85/96 Martínez Sala [1998] ECR I-2691.
37 Case C-184/99 Grzelczyk [2001] ECR I-6193.
38 This tendency is even perceptible in the field of PJCCM, where the Court has regularly stressed that EU law should not undercut the fundamental elements of the national criminal justice systems of Member States. In the view of the EU Select Committee of the House of Lords, analysis of the judgments of the Court of Justice concerning pre-Lisbon police and justice measures bring ‘no convincing evidence that the [Court] has been either judicially activist or that its rulings set out to undermine the autonomy of Member States’ criminal justice systems’. EU Select Committee (n 8) 37.
39 Case C-376/98 Germany v European Parliament and Council [2000] ECR I-8419.
40 Ibid [83].
41 Case 120/78 Rewe-Zentral [1979] ECR 649 [8].
42 Case C-36/02 Omega [2004] ECR I-9609 [37].
43 Opinion 1/75 on the competence of the EEC to conclude the OECD understanding on a local cost standard [1975] ECR 1355.
44 Opinion 1/78 on the competence of the EEC to conclude the international agreement on natural rubber [1979] ECR 2871.
45 [2001] ECR I-9713.
46 [2009] ECR I-11129.
47 As a result of the Lisbon Treaty, the EU enjoys now exclusive competence in the field of trade in services (art 207). However, there are some circumstances where unanimity in the Council is required for the conclusion of international agreements in this field.
48 Case C-34/09 Ruiz Zambrano [2011] ECR I-1177.
49 Ibid [42].
50 See in particular Hailbronner, K and Thym, D, ‘Comment on Case C-34/09, Gerardo Ruiz Zambrano v Office national de l’emploi (ONEm), Judgment of the Court of Justice (Grand Chamber) of 8 March 2011, not yet reported’ (2011) 48 CML Rev 1253–70Google Scholar; and Hinarejos, A, ‘Extending Citizenship and the Scope of EU Law’ (2011) 70 CLJ 309, 311CrossRefGoogle Scholar. For a critical view on the alleged lack of reasoning in Ruiz Zambrano, see more generally Rigaux, A, ‘Arrêt d’espèce? Questions de principe? Les acquis, les lacunes et les incertitudes de l’arrêt Zambrano sur la géométrie de la citoyenneté européenne’ (2011) 5 Jurisclasseur 12–13 Google Scholar.
51 See Case C-434/09 MacCarthy et al [2011] ECR I-3375; Case C-256/11 Dereci et al (ECJ, 15 November 2011); and Case C-40/11 Iida (ECJ, 8 November 2012).
52 See in particular Lenaerts, K, ‘“Civis europaeus sum”: van grensoverschrijdende aanknoping naar status van burger van de Unie’ (2012) 1 Tijdschrift voor Europees en economisch recht 2, 12–13Google Scholar; S Adam and P Van Elsuwege, ‘Citizenship Rights and the Federal Balance between the European Union and its Member States: Comment on Dereci’ (2012) European Law Review 176, 189–90.
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