The European Court of Justice is not an impartial court and has no role to play in post-Brexit EU-UK relations

Leading authority on EU Law, Dr Gunnar Beck (SOAS), explains why, as a matter of law, Britain can leave the EU without any liability for any allegedly outstanding sums under the EU budget. Dr Beck dismantles Helena Kennedy QC’s suggestion in the Guardian on 3 May 2017 that the EU Court of Justice should have a role in post-Brexit Britain. The Court of Justice has been “a motor of EU integration”, Dr Beck explains, and cannot be trusted as an impartial adjudicator of any post-Brexit disputes involving the UK. Continue reading “The European Court of Justice is not an impartial court and has no role to play in post-Brexit EU-UK relations”

Brexit – doing a deal with the EU

During the general election campaign, the divide between the political parties was over what kind of deal should replace the current relationship which exists under the EU Treaties between the UK and the rest of the EU. That current arrangement involves the UK being inside the EU Customs Union and participating in the EU Single Market. What then should replace that current relationship and how would it compare with the present arrangement?

The first point to make is that participation within the Single Market is a very mixed blessing.  In our article Brexit and the Single Market, we explain that the rules of the European Single Market are made up of a number of different elements, some of which are helpful to trade, some of which (such as harmonised regulations) have benefits and disadvantages which counterbalance each other and may have different positive and negative impacts depending upon the sector concerned, and others of which are positively harmful and negative for the UK.  In that latter category are the ‘Fortress Europe’ rules of the Single Market which positively require us to impose restrictions on trade between ourselves and non-Member States, so driving up costs to our consumers and industry.

Therefore the aim should not be to preserve participation in the European single market with its negative features. Instead, the aim should be access to the single market.

The EU trade tail should not wag the global dog

Before turning to what kind of deal with the remaining EU we should aim for, we should first ask what is the dog and what is the tail?  Over the past 10 to 15 years, there has been a dramatic decline in the proportion of our trade which goes to the EU as compared with our trade which goes to the wider world. Continue reading “Brexit – doing a deal with the EU”

Germany and the EU cannot afford to drive a hard bargain over Brexit

by Gunnar Beck, Barrister and Reader in EU law & Legal Theory, University of London

This article first appeared in the Wall Street Journal Europe

Germany seems to be softening her stance on Brexit. On 17 August Michael Roth, Germany’s Minister of European Affairs, said, “Given Britain’s size, significance, and its long membership of the European Union, there will probably be a special status which only bears limited comparison to that of countries that have never belonged to the European Union.” Roth’s comments mark a departure from Chancellor Merkel’s comments shortly after the Brexit referendum that Britain would receive no special treatment, nor would she be allowed to “cherry-pick” in trying to retain full access to the single market.

Roth’s comments have not gone unnoticed in the British press. The initial response was a negotiating tactic which has been exposed when Theresa May refused to trigger Art. 50. Since Merkel has come out publicly in support of the EU’s and France’s position against any cherry-picking, Germany’s emerging position is being communicated on a more junior level. It allows the German government to begin the process of shifting the ground while not appearing to change its mind (yet).

Few, however, realise how weak Germany’s and the EU’s negotiating position actually is. Continue reading “Germany and the EU cannot afford to drive a hard bargain over Brexit”

Continuity for the City after Brexit

Brexit: Continuity of current arrangements for banks and investment banks

One area where continuity is very important is the field of financial services. We are delighted to reproduce with permission an article (first published by Thomson Reuters Accelus on www.complinet.com) by a real expert in this field, Barnabas Reynolds, who is partner and head of financial institutions advisory and financial regulation at Shearman & Sterling LLP:

Much of the analysis offered in the media and other publications to date on the implications of Brexit for the bulk of business carried on in the City has been misleading and has overlooked or omitted key points.

The vast majority of banking and investment banking activity should be largely unaffected even in the worst case scenario, and the ultimate situation is likely to be considerably better than that.

In other words, by default, institutions conducting wholesale investment services — that is, broadly, principal and agency broking/dealing, custody services, fund management outside the scope of the Alternative Investment Fund Managers Directive (AIFMD), and investment advice with professional and sophisticated investors — into EU Member States will be able to do so without the need for regulation other than in the UK.

Any negotiated exit is likely to contain additional facilities for and recognition of Europe-wide business. Continue reading “Continuity for the City after Brexit”

Why My American Students Used to Gasp in Horror When they Learnt About the EU

By Jeremy Brier,  barrister and former Adjunct Professor of EU Law at Pepperdine University.

When I used to lecture American graduates in European Union Law, there were many occasions when I reduced them to gasps of disbelief.  Like the time I told them they couldn’t text each other during class. Total outrage. Once, I even had the temerity to ask a boy kindly to refrain from eating a Chinese takeaway (I don’t mind surreptitious snacking but full mid-class meals with chopsticks and napkins are really pushing it).

But there was always a particular moment, midway through our first lecture on the EU, when my American students would look particularly dumbstruck.  It was when they learnt that the common market, entered into in a spirit of amity to heal war-torn Europe, had by the reasoning of its appointed Judges, determined that EU laws must reign supreme over those of the EU’s member states. Continue reading “Why My American Students Used to Gasp in Horror When they Learnt About the EU”

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