Withdrawal – UK potential financial liabilities

The European Union’s ever expanding Brexit financial claims against the UK, now apparently northward of €100bn, have raised their head in the campaign. On 21 March 2017, the Prime Minister gave an interview to The Sunday Telegraph in which she insisted that the UK’s rights must be respected — including its claim to a share of the European Investment Bank —  as well as any obligations. David Davis gave an interview to The Sunday Times in which he was dismissive of the EU’s financial demands for €100bn or more and commented:  “I’m sufficiently poor to think that €1bn is a lot of money.” He also raised the possibility that the EU’s stance on this and other issues might lead to “no deal”.

We have scrutinised the EU’s Brexit financial claims as they are now being advanced under the European Council’s approved negotiating guidelines. Our new and updated Analysis of the UK’s potential financial liabilities looks at the legal arguments in depth. We have failed to find a credible legal argument either for a liability on the UK to contribute to the EU’s unfunded pension fund deficit, or for any liability to contribute to the EU’s ongoing programmes after Brexit day on 29 March 2019, with the possible exception of an obligation to carry on contributing overseas aid of €1.3bn up to the end of 2020 via the European Development Fund (EDF). But the EDF example is actually helpful to the wider argument that the UK has no ongoing liability at all to contribute to the EU budget, since the funding for the EDF is agreed via a quite different mechanism in which the individual Member States assume direct obligations to fund the programme outside the framework of the EU treaties. Continue reading “Withdrawal – UK potential financial liabilities”

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”

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