Cause and Effect in European Politics and Law

Everything on the Table

Zhaneta Kuyumdzhieva, Adelina Marini, February 1, 2013

After David Cameron's speech about Britain's future relations with the European Union, not a few journalists and analysts compared it, to some extent jokingly, to the famous family phrase "Honey, we have to talk", which usually is a prelude to a parting and possible to a divorce. The desire for parting could be based on many things one of the key of which could simply be bad communication - half-expressed things, not well formulated problems - unsatisfied desires or a dropped out need to share the common bed. As Olli Rehn said before over 100 hundred representatives of national parliaments of the member states, including Britain, in Brussels on January 29th, one does not need to threaten with a divorce if only some changes are needed.

Will British voters get the opportunity to express their opinion at a referendum depends on whether they will vote again for the Conservatives led by Cameron. According to a ComRes poll, quoted by the British daily The Independent, after the prime minister's speech 30% of citizens stated they are likely to support the Tories at the next parliamentary elections because of the promise for a referendum. One in six supporters of Labour (16%) and almost four in ten supporters of Nigel Farage's party (UKIP) are likely to vote for the Tories. It is important to note, however, that not all conservatives are impressed by the promise - 28 per cent of their supporters and 35 per cent of those who voted for them at the previous election do not register any increase of the likelihood to support the party because of the referendum.

But while the British are yet to agree on whether there will be a referendum and how will they vote in it, there are some legal aspects worth taken into account by then. They are outlined in the analyses of two analysts with the Centre for European Political Studies (CEPS) - Michael Emerson-senior, research fellow with the think-tank and Adam Lazowski, Reader in Law at the School of Law, University of Westminster.

Very interesting are the operational cases of a possible exit from the EU. Although the pain from an exit from the EU has ceased aching due the long time a Grexit was discussed, the issues that still have no answer are too many. In his analysis "How to withdraw from the European Union? Confronting hard reality", Adam Lazowski summarises the legal steps that need to be undertaken. His conclusion is that "Leaving the EU is not an easy job". The levels of integration are so high that it is already hard to avoid deep legal, economic and political impact on the two sides.

Leaving the EU cannot simply "pass through" Article 50 of the Treaty for the EU, which stipulates that "A member state may decide to leave the EU as per domestic constitutional requirements ..." Its leaving, however, must happen via a reliable legal framework that will regulate the period the exit should take place and other important details. Although in Article 50 there is a time horizon: "... the EU Treaties cease to apply to the departing country on the day of entry into force of the withdrawal treaty or, if that does not materialise, two years from the date of notification of the intention to leave". The European Council, in an agreement with the departing country, can decide unanimously to expand that period of time.

According to Lazowski, two years is a short period of time for the reality of law. And the unclear situation in which Europe and Britain find themselves will prove to be a problem, most of all for the rights of the citizens and companies who benefit from the single market. The agreement for leaving the EU could be concluded as a mixed agreement - a contract in the jurisdiction of the European institutions and the member states, which requires signature by both. That will further complicate the process of ratification and will treat the departing country as a third country. Additionally, other problems will stem from the fact that the exit agreements, unlike the accession ones, are not part of the primary EU legislation which means that they cannot supplement the EU founding treaties.

This is why a formula will be needed - for example signing an agreement for amendments of the founding treaties by the member states, together with a contract that regulates the departure and removing all the provisions for the departing country. The phases of arranging the relationship with the leaving country will probably be two: the period of exit negotiations and ratification of the agreement. Although it looks logical representatives of the departing country to attend meetings and summits until the date of departure, it is not known what rights they will have when discussing issues from the EU agenda. There is no clarity as well on the status of the officials with British nationality (in this case) nor of EU structures in Britain.

The situation with the single market, which seems the only reason for the Albion's participation in the EU, represents another significant case. In order to benefit from the common market London will have to create a model of integration that does not require membership and would lead to other specific institutional and legal agreements. It is not known, though, how many of the member states will be interested in negotiations on another significant legal regime.

Michael Emerson for his part, views not that much the legal issues related to Britain's intention to leave the EU, but rather he identifies some dangerous approaches до Cameron's policies. According to him, the eurosceptics in London do not have reasons to complain from a growing regulation on European level because to a large extent it is precisely in the area of the single market and environment, while the other areas London simply does not want to take part in. Regarding visa regimes, Britain's self exclusion from Schengen leads to a loss of market share in the area of tourism. This is especially evident in the case of China whose tourists are not very keen on being issued two types of visas for Europe. This matter can be arranged via an agreement with Schengen for mutual recognition of visas. Avoiding such a simple solution Emerson explains with the populist attitudes in British media.

Cameron's approach, defined by some as "blackmailing", harms UK's image as an honest player globally and it is possible to lead to criticism within the Union in terms of the country's budget and the rebates London gets in the multiannual EU budget. The very management of the political process of departure - holding a referendum - hides a lot of risks for the successful exit of the country from the situation its state elite is putting it in. The lack of a significant track record in holding referenda could lead to incorrect putting of the question. In his speech, Cameron promised, however, the question to be clear.

Another essential for Britain issue should not be ignored as well, which is yet to be resolved - the future of Scotland. According to Emerson, the "Scottish nationalists do not however want to secede from the EU, and for the UK to be toying with secession from the EU could intensify Scottish arguments for seceding from the UK. This leads into the complicated question over whether or how an independent Scotland might accede to the EU, if UK secession meant in a first step that Scotland would have to secede as part of the UK. EU lawyers seem to be of the view that an independent Scotland would have to apply under the regular accession procedure, and several member states would not want to endorse this precedent (Spain and Belgium most clearly)".

If David Cameron does not succeed in passing his economic interests in the easy way - via a new treaty or a compromise with the current legislation - and it comes to the option for a Brexit, as he said in his speech - the country will most likely survive on its own. The question is whether the price will not be too high. The prime minister, for sure, has to secure a good deal for London for the single market. Achieving satisfactory rights in that area will be what will move the country closer to its vision for a "good deal for Britain" outside the Union.