Jun 24, 2016 - conference on 26 April 1974, the cabinet was divided, obliging Harold ...... 323 Nick Clegg described him last year as "like Donald Trump with a ...
UNIVERSITÀ DEGLI STUDI DI PADOVA DIPARTIMENTO DI SCIENZE POLITICHE, GIURIDICHE E STUDI INTERNAZIONALI Corso di laurea Magistrale in Politica Internazionale e Diplomazia
A SOFT BREXIT: ANALYSIS OF THE REFE RENDUM OUTCOMES AND FUTURE POSSIBLE SCENARIOS
Relatore: Prof. Antonio Varsori
Laureando: ALFREDO SALMASO matricola N. 623784 /SPGI
A.A. 2015/2016
Table of Contents Introduction – the methodological approach ...................................................... 3 Chapter I - Towards the referendum ................................................................... 5 1.
A special membership .................................................................................. 6
2.
The UKIP struggle ..................................................................................... 13
3.
The new Tories: David Cameron & Boris Johnson ................................... 20
4.
The age of referendum ............................................................................... 27
Chapter II - The Brexit referendum................................................................... 33 1.
The commitment for a Brexit referendum ................................................. 34
2.
The main issues of the referendum ............................................................ 40
3.
Negotiations ahead of the UK's EU referendum ........................................ 53
4.
Overviews of the campaigns ...................................................................... 57
Chapter III – The day after................................................................................. 67 1.
The result of the referendum ...................................................................... 68
2.
The European reaction to Brexit ................................................................ 78
3.
A sociological explanation to Brexit ......................................................... 90
Chapter IV - The legal route to Brexit ............................................................... 99 1.
The Half-membership .............................................................................. 100
2.
The Greenland case .................................................................................. 107
3.
Analysis of the Article 50 TEU ............................................................... 114
Chapter V – The current situation ................................................................... 127 1.
A new Government for the UK................................................................ 128
2.
The divisions inside the EU ..................................................................... 143
Chapter VI – The possible schenarios .............................................................. 167 1.
Comeback to the WTO tariffs .................................................................. 168
2.
Set a Free Trade Agreement .................................................................... 180
3.
Join the EFTA .......................................................................................... 193
4.
A continental partnership ......................................................................... 213
5.
A Soft Brexit ............................................................................................ 221
Abbreviations ..................................................................................................... 233 Bibliography ....................................................................................................... 235 Closing remarks ................................................................................................. 240 1
Introduction – the methodological approach At the time this publication was written the British referendum on the European Union membership has outlined the intention of the United Kingdom to leave the Union. The most important event of European Integration (or disintegration) happened totally unexpected, leaving stunned, a lot of experts and politicians. However, with the in hindsight, the outcome of the vote has a deep root in the process of European integration of the United Kingdom. Analyzing the history during its current evolution, this publication will be based more on information coming from the main European newspapers (Politico, Euractiv, EUObserver, The Guardian, The Express, the Independent, The Express, The Mirror, La Repubblica, Le Monde, Der Spiegel) and publications from the National and European Institution (the UK Parliament, the Scottish Parliament, the UK Electoral Commission, the European Council, the European Commission, the European Parliament, Eurobarometer) such as briefing, in-deep analysis and studies. Textbooks (like “Come Uscire dall Globalizzazione”, “Diritto dell'Unione Europea Manuale di diritto privato europeo”, “Diritto privato dell'Unione Europea”) were used as basis to develop deeper review of the sociological, political and legal challenge of the issue. The first part of this publication will trace the history of this path, starting from the early disputes over the European Community membership, which leaded the UK to have a special membership within the Community. An open wound at the heart of Europe, ignored for a long time. Then, this publication will give an overview of the process of growth of the British Eurosceptic parties from the ’80 until now. Crossing the Cameron Conservatives Governments, it will be clear how the claims of independence from the European bloc have passed from a radical opposition to the mainstream. After the Lisbon process, they have been slowly absorbed by the Tory Party, obliging the UK Premier to hold a referendum to avoid the split of the party and then to lose the general election. The inexorable fate will
3
fall over the British PM, even its attempt to make an agreement with the EU to gain the favor of the voters. The public opinion remained spellbound by the fairy tales told by Farage and Johnson (leaders of the Leave campaign). Using a coarse language and frightening statistics (generally counterfeit) they captivated audiences as the bad guys of a reality show. The clumsy attempts of Cameron to oppose to them using economic and political reasons were simply useless. The analysis of the referendum outcome will be the cue for the final conclusion on the sociological process which led to Brexit. The second part will address the current political challenges to find the most suitable agreement for the UK after it will have left the Union. The starting point will be the legal route to leave the EU. As no other countries have ever exited the bloc, there is uncertainty over the outcome. Some experts wrongly decided to use the Article 48 TEU (revision of the treaties) instead of the exit clause designed by Article 50 TEU. The history of Greenland, the only country (but not Member State) which has left the bloc, will introduce the political and legislative challenges to it. The new UK Government of Theresa May committed to create a new Global Britain after a Hard Brexit, coming back to the WTO tariffs. On the European side, divisions between and within the Member States and the Institutions on the future of Europe are seriously harming the future of the Union itself, letting the populist and Eurosceptic movements grow undisturbed. A deep analysis of the main possible scenarios for the UK out of the Union, led to the coclusion that the only one which could address both the demands of the UK and the EU is a Soft-Brexit. This would be reached with a permission to the UK to join the EFTA, the smaller twin of the European Union. This will allow the UK to have a safe international environment inside which it could realize a transition, after the leave. The relationships with the rest of the Union will be organized under specific sectorial agreements, as it stands now for the Swiss. In parallel to the negotiation process (which will also be pictured until the beginning of October 2016), the European Union should start the discussion over its future. Because Brexit is not only a matter of the English people, but it goes far beyond the purpose of this publication.
4
Chapter I - Towards the referendum 1.
The special membership
2.
UKIP struggle
3.
The new Tories
4.
The age of referendum
Introduction This Chapter sums up the history of the relation between UK and CEE/EU, meaning to show how complicated was the UK membership from its beginning. Thanks to the first agreement with the CEE, giving UK a special status, the British integration in the European system followed a separate way. A radicated culture of isolation and imperialism drived the establishment to be always critical versus every further step of integration and sovereignty disposals. Divided between the European geographical collocation and its worldwide interests, the UK was never able to choose between the integration within the EU or within its fomer empire, the Commonwealth. During time, several threts to its membership came from the civil society and political parties as well. The Globalisation and the impossibility to have a popular vote over the Lisbon Treaty, awaked the anti-european movement. The need for a referendum raised exponentially, carried by some small but pugnacious parties. The economical crisis augmented this feeling of intolerance to the technocracy of Brussels, and the big parties stated to sustain the referendum in order to gain more votes. The history makes fun of us sometimes, giving as main actors of Brexit two old friends: David Cameron and Boris Johnson.
5
“They lured us into the market with the mirage of the market miracle” Baroness Barbara Anne Castle, 1975
1. A special membership From the beginning of its participation to the Economical European Comunity (EEC)1, the United Kindom had a "special status". European Union had also another country with a special status, Denmark2 and the newest European members had also the possibility to not have a full membership3. However, UK had also a strong economical and polical power, which gave it the possibility to raise its voice on the main issues. Furthermore, UK is the only strong economy in Europe without the Euro. This special membership created concerns and tensions within the other Member States, which always asked UK to fully become a member. The memberhip of the UK was threatened more than once during the time, showing the deep intollerance to the sovranational sovereignty disposals.
The membership UK applied to join the EEC in 1963 and again in 1967, but both applications were rejected thanks to the veto of the President of France, Charles de Gaulle, who judged UK incompatible with Europe. Both economical and political aspects were given as reasons. UK, finally joined EEC on the third application, after de Gaulle resignation. The Conservative Prime Minister Edward Heath signed the agreement in 1972. Therefore, from the 1st January 1973 the UK became a member of the EEC, but problems immediately arose. Previously in 1971, Raymond Blackburn attempted to prevent the United Created by the Treaty of Rome in 1957 from France, Italy, Holland, Belgium, Luxemburg and West Germany. EU member state since 1 January 1973. Denmark obtained opt-out from the Maastricht treaty, these are outlined in the Edinburgh treaty: Denmark not participate in the single currency and is not be bound by the rules concerning UEM economic policy. Denmark retain its existing powers in the field of monetary policy according to its national laws and regulations. Denmark retains the capacity to pursue its own policies with regard to distribution of income and social welfare. 3 Disciplined treaty of Lisbon signed on 13 December 2007. 1 2
6
Kingdom from acceding to the Community. He sought a declaration that the Government would be acting unlawfully if it were to sign the Treaty of accession to the EEC. His argument was that the Government would be surrending “the sovereignty of the Crown in Parliament”. The Court of Appeal rejected out his action.
The first referendum During the campaign of 1975, all of the major political parties and mainstream press supported continuing the membership of the EEC. However, there was significant split within the ruling Labour party. During the constitutional conference on 26 April 1974, the cabinet was divided, obliging Harold Wilson suspended the convention and allowed ministers to publicly campaign on either side4. The pro-Europe wing formed the Social Democratic Party (SDP). On 5 June 1975, the electorate were asked to vote yes or no on the
United Kingdom European Community Membership Referendum 1975
question: "Do you think the UK
Choice
Votes
%
Yes
17,378,581
67.20
No
8,470,073
32.80
Valid votes
25,848,654
99.79
Invalid or blank votes
54,540
0.21
Total votes
25,903,194
100.00
should
stay
in
Community (Common
the European Market)?".
The majority voted "Yes", while only Shetland and Western Isles
Source: Wikipedia
districts voted “No.”
The commitment of a second referendum Tensions between the EEC and the UK exploded again in 1984, when the Labour Party campaigned in the 1983 general election with the commitment to withdraw from the EEC5. The membership was defended by the Conservative Government of Margaret Thatcher, who was re-elected6. However, the Iron Lady took seriously the concerns about EU, starting talks in order to reduce British 4 5 6
Seven of the twenty-three members of the cabinet opposed EEC membership. What did the 'longest suicide note' say? BBC news magazine, 4 March 2010. The 1983 United Kingdom general election was held on 9 June 1983.
7
payments to the EEC budget. The main issue was the contribution to the agricultular policy, much higher due to its relative lack of farms. Farm subsidies then made up some 70% of total EEC budget. The UK negotiated to reduce Britain’s contribution to the budget from more than 20% of the total in the ‘80s to about 12%.
The half membership to the European Union On 1 November 1993 another step towards the European integration was completed. As a result of the Maastricht Treaty, the EEC became the European Union, but not without trouble. Lord Rees-Mogg, a cross-bench peer and former editor of The Times, applied for judicial review against the Foreign Secretary the day before the Bill incorporating the Maastricht Treaty was to receive the royal assent (in July 1993). The application by Rees-Mogg, financed by the multimillionaire Sir James Goldsmith, was dismissed by the High Court, so leaving the way clear to proceed with ratification. The new name reflected the evolution of the organisation from an economic union into a political union. The EU was designed to gradually integrate European nations politically and economically, including a united foreign policy, common citizenship rights and a single currency, the euro. UK strongly struggled against the creation of the Euro and finally denied its partecipation, followed by Danmark. This create anoter big difference between EU Members and the UK, which was fully subscribed the Treaty.
And other referendum commitment In 1994 the eccentric multi-millionaire Sir James Goldsmith7 formed the Referendum Party, with the clear commitment to hold another referendum on the EU membership of the UK8. Furthermore, also the Labour Party contested the membership, its leader Harold Wilson commited to renegotiate Britain's terms of membership and then after he committed that if he had won the election hewould have hold a referendum on whether to remain in the EU with the new terms. Losing 7 8
26 February 1933 – 18 July 1997, member of the prominent Goldsmith family. Wood Nicholas (28 November 1994). Goldsmith forms a Euro referendum party. The Times.
8
the election, both of the parties had no power to pursue the referendum willing. In the 1997 general election the Referendum party runned again, but it failed to win a single parliamentary seat9, losing its deposit (funded by Goldsmith). At the same
time
was
formed
the UK
Independence
Party (UKIP).
The
Eurosceptic political party (which lead the nowadays campaign to leave EU), was at that time overhelmed in vote by the Referendum party. However, the election was winned by the Labour party, which had turned its anti European position. The new Prime Minister Tony Blair was indeed strongly pro-European Union, and worked to rebuild ties with the rest of Europe.
EU issues Several issues contributed to make people lose confidence in the EU during the late 90‘and beginning of 2000, creating the basis for the rise of the populistic movements during the following decade. The UK in the late 90s faced the crisis of the “mad cow” (bovine spongiform encephalopathy). Brussels imposed a ban on British beef, lifted only in 199910. Europe and the UK didn’t just battled over beef. In 2000, after a 27-year-long battle and a victorious verdict from the European Court of Justice (ECJ) in Luxembourg, British chocolate started to be sold in the rest of Europe. In France, Belgium, Spain and Italy, among other nations, had argued that only cocoa butter, and not vegetable oil, should be used making chocolate. They also though British-made chocolate–including popular brands like Mars Bars, Kit-Kats and Cadbury’s had far too much milk, and wanted it to be labeled as “household milk chocolate,” “chocolate substitute” or even “vegelate.” This are only a few issues, but clearly demonstrate the feeling of targheting the British people always had.
9
Referendum Party fielded candidates in 547 constituencies at that election and won 810,860 votes, 2.6% of total votes cast Uk general Elections 1997 Party Vote and Lost deposits UK General Election, 1997 10 After tough restrictions were imposed on beef exports, but France kept its own ban in place for years after that.
9
The Lisbon Treaty During the negotiations of the draft, Constitutional Treaty was also subject to legal challenges in 2003, in front of the Court of Appeal. The applicants, in this case, argued UK Government would be acting unlawfully and/or contrary to convention were it decided to ratify the Costitutional Treaty without prior electoral approval. The Court of Appeal found the case was not seriously arguable. However, the issue was taken seriously by the UK labourist Government of Tony Blair. In 2004, during the sign of the negotiation for the European Constitutional Treaty, he fully supported the initiative, but imperatively committed to submit the ratification to a referendum vote11 (as other Member Statesdid). No date was named, so Conservatives Lib/Dem committed to hold a referendum on whether to ratify the EU Constitution in their general election manifestos. However, when in 2005 France and Netherlands referendums rejected the European Constitution, was clear that the process was ending. Indeed, a referendum was not necessary anymore. In 2007, after plans for an official EU Constitution collapsed12, the member states finished negotiating the Lisbon Treaty, which gave Brussels broader powers. UK stomachace was evident from the beginning. The Labour Prime Minister Gordon Brown missed the television ceremony in which the leaders of the 26 other Members signed the treaty (Signing it later, he was criticized for failing to defend a treaty he had negotiated) Mr. Brown delayed his trip to Lisbon so he could appear before a Commons select committee scrutinising his Government and he promised the committee there would be a full debate in Parliament on the 250-page text, but no referendum, as the treaty was different from the constitution. Indeed, before the Lisbon Treaty entered into force in 2011 it passed: - The approval by each House of Parliament, as required by the s.1.3 of the EEC Act 1972 - A primary legislation which confirm the amending of the treaties (both Rome Labour Party Manifesto 2005: “We will put it to the British people in a referendum and campaign wholeheartedly for a YES vote”. 12 Not cappable to replace the 2 Mastreecht Treaty with the new one (as it was the initial idea), Member States decided so to address the lack of efficency and problems of legitimacy by ammending the existing treaties. It divides the content between the TEU (conteining the principles and objectives, provisions on institutional framework, general prosion and the common foreign and security policy) and TFEU (containing the details on how the EU is to function). 11
10
and Maastricht now TFEU and TEU), as stated by s.5 of the EU Act and a referendum over it. Moreover, the EU Act, as amended in 2008, introduces a referendum requirement on any significant future transfer of power to the European Union (ss 2,3 and 6 EUA)13 Mr. Brown defended the treaty saing to the Committee the UK gained “more scope for Parliament to debate some of these issues than there has been in the past". The UK will give up its veto in many policy areas as the EU introduces more qualified majority voting. However the changes were in the country's interests, Mr. Brown reassured: "some of them are minor and procedural and the other ones are in Britain's interest and if they are not we have usually got an opt-in or an opt-out to decide whether we wish to be part of it"14. The UK conserved its special status, the opt-outs (negotiated at various times) were fully added as protocols to the Lisbon Treaty: - Protocol 15: states that United Kingdom is not obliged to adopt euro and retain its powers in the field of monetary policy (thus all the provision concerning the European Central Back do not apply to the UK), until it intends to partecipate.15 - Protocol 19 and 20: UK is not part of the Schengen area, until it decides to take part in some or all provisions to this acquis.16 UK will also continue its bilateral policy of free movement of people between the UK and Ireland. - Protocol 21: UK and Ireland do not always take part and are not bound by decision-making in relation to “Title IV of Part 3” of the TFEU. Thus, in relation of the Area of Freedom, Security and Justice, including policies on border checks, asylum and immigration. 13
The European Act is not really clear in this section, indeed it give the possibility of a backdoor to bypass the referendum. The “simplified revision procedure”, Art. 48 TEU, which allows member state acting unanimously, by means of a decision of the European Council, to revise Part 3 TFEU (Union Policies and Internal Actions) and so to bypass the lengthy procedures of a normal revision of the Treaties is transposed in Section 3.4 of the EUA. The Act state: “if the proposed revision and transfer of competences are insignificant, a referendum is no required”. However, this not solve the dilemma. Summarizing the theory of Gordon and Dougan (and in the light of the future evidences): “the UK Parliament has accepted an interpretation of its sovereign authority which permits it to make statutory alterations to the manner and form which must be followed for the creation of a valid legislation.” M. Gordon and M Dougan, The United Kingdom’s European Union Acrt 2011 “Who won the bloody war anyway?” (2012) 37(1) European Law Review 3-30, 23-24. 14 Brown belatedly signs EU treaty, BBC, 13 December 2007; 15 A similar protocol was negotiated with Danmark. 16 This provision applies also fully to Ireland and partially to Danmark, which already intended to partecipate at the Schengen area and has to implement the aquis.
11
The referendum was avoided but the anti-EU movements glowed with the new agreement. In February 2008, Stuart Bower, a UKIP activist challenged the Government’s refusal to hold a referendum on the Lisbon Treaty. He argued that the treaty was effectively the same as the European Constitution, on which the Government promised a public vote at the 2005 general election. The judge in Brighton County Court said the effect of breaching a manifesto commitment was political, not legal. In June 2008 another judicial challenge to EU treaties was made by Mr. Stuart Wheeler17. He sought a High Court order to force the Government to hold a referendum on the Lisbon Treaty, as promised in. Mr. Wheeler claimed that the refusal to hold a referendum in relation to the Lisbon Treaty (which is ultimately a decision for Parliament) was unlawful because it was in breach of the claimants’ “legitimate expectation”. The Administrative Court rejected his claim using the same motivation of the Brighton County Court.
A barrister turned investment banker who had made a fortune pioneering “spread betting” and was once the Tories’ biggest donor (he now backs UKIP) 17
12
“We seek an amicable divorce from the European Union and its replacement with a genuine free-trade agreement” Nigel Farage, 15 July 2004
2. The UKIP struggle To fully understand the nowdays history, we have to go back to 1991, when the historian Alan Sked18 founded the Anti-Federalist League. The single-issue of Eurosceptic party strongly opposed the Maastricht Treaty, which had been recently signed, asking the Conservative Party, at the government, to avoid the United Kingdom from entering in the European Union. Under the Anti-Federalist League's banner, Sked runned from 1992 the general election in Bath, gaining 0.02% of the vote. At a league meeting held in the LSE on 3 September 1993, the group was renamed the UK Independence Party (UKIP) deliberately avoiding the term "British" so as to have no confusion with the far-right British National Party (BNP).19
The rivalry with the Referendum Party At the time, the UKIP was not the main anti-european party. The Referendum Party, founded by the James Goldsmith, could count over more resourses and supporters. The 1994 European Parliament election the UKIP gained only 1% the vote, overcomed by the Referendum Party. The same story repeated at the 1997 general election. UKIP fielded 194 candidates, but secured only 0.3% of the national vote; only one of its candidates, Nigel Farage in Salisbury, secured over 5% of the vote and had his deposit returned20. The UKIP again was beaten by the Referendum Party in 163 of the 165 seats in which they stood against each Former Liberal Party candidate, member of the Bruges Group, and professor at the London School of Economics (LSE), Sked had converted to Euroscepticism while teaching the LSE's European Studies programme. 19 Ford & Goodwin. Usherwood, Simon (2008). "The Dilemmas of a Single-Issue Party: The UK Independence Party". pp. 21-24. 20 Ford & Goodwin. Usherwood, Simon (2008). "The Dilemmas of a Single-Issue Party: The UK Independence Party". p. 30. 18
13
other. This dualism ended the following year, when the magnate died from cancer. The Referendum Party orphan of its father, economic substenitor and leader disappeared.
The rise of Nigel Farage After the 1997 election, Sked was pressured into resigning by a party faction led by Nigel Farage, David Lott and Michael Holmes, who deemed him too intellectual and dictatorial21. Sked left the party, complaining that it had been infiltrated by racist and far-right elements, including spies for the BNP.22/23 This connection was emphasised in the press, particularly when Farage was photographed meeting with BNP activists. Holmes took over as party leader. The new leaders took stronger position than their predecessor (in particular against immigration) and in the 1999 European Parliament elections (European election in the United Kingdom to use proportional representation) UKIP gained 7% of the vote and so three seats: in South East England (Farage), South West England (Holmes), and the East of England (Jeffrey Titford). Again an internal power struggle ensued between Holmes and the party's National Executive Committee (NEC) led by Farage. The NEC criticized Holmes decision to support the European Parliament idea to greater powers over the European Commission. The NEC removed Holmes from power and consequently Titford was elected leader.24 In the 2001 general election, UKIP secured only the 1.5% of the vote, and six of its 428 candidates retained their deposits. UKIP had lost much of its support to the Conservatives, whose leader William Hague had adopted increasingly Eurosceptic rhetoric during his campaign.25 In 2002, another change of leadership drives the former Conservative MP Roger Knapman at the UKIP presidency. Under 21
Ford & Goodwin. Usherwood, Simon (2008). "The Dilemmas of a Single-Issue Party: The UK Independence Party". pp. 33-34. 22 Ford & Goodwin. Usherwood, Simon (2008). "The Dilemmas of a Single-Issue Party: The UK Independence Party". pp. 36-37. 23 Nick Cohen: No truth behind Veritas, 6 February 2005 The Guardian. London. 24 Former Ukip leader quits party. London BBC news. 21 march 2000. 25 Ford & Goodwin. Usherwood, Simon (2008). "The Dilemmas of a Single-Issue Party: The UK Independence Party". pp. 38-41.
14
Mr. Knapman the UKIP turned it-self to a more mainstream politics. Knapman hired the political campaign consultant Dick Morris to aid UKIP. The party adopted the slogan "say no" and launched a national billboard campaign.26 In 2004, also the administrative situation of the UKIP was completed, as a private company limited by guarantee.27 The party was aided by increased funding from major donors, and the celebrity support of the chat show host Robert Kilroy-Silk, who stood as a candidate in the East Midlands. UKIP's support increased during the 2004 European Parliament elections, when it placed third, securing 2.6 million votes (16.1%) and winning 12 seats.28 Kilroy-Silk then began criticising Knapman's leadership, arguing that UKIP should stand against Conservative candidates, regardless of whether they were Eurosceptic or not. This position was rejected by many party members, who were uneasy with Kilroy-Silk's newness. After Farage and Lott backed Knapman, Kilroy's plan failed and he left the party in January 2005. Two weeks later, he founded his own party, Veritas, taking a number of UKIP members, including both of its London Assembly members, with him. After Kilroy-Silk's defection, UKIP's membership declined by a third and donations dropped by over a half. UKIP continued to be widely seen as a singleissue party. In the 2005 general election, when it fielded 496 candidates, receiving only 2.2% of the vote, and 40 candidates had their deposits returned. Electoral support for the BNP grew during this period. Academics and political commentators suggested that the parties were largely competing for the same voter base, a section of about 20% of the population of the United Kingdom (UK). Given that the BNP had outperformed UKIP in most of the seats that they both contested, many UKIP members, including several figures on the NEC, favoured an electoral pact with the BNP; Farage opposed this and forced the expulsion from the party of those who advocated the pact.29 Two MEPs, Ashley Moat and Tom Wise, were expecting to 26
Ford & Goodwin. Usherwood, Simon (2008). "The Dilemmas of a Single-Issue Party: The UK Independence Party". p. 42. 27 Etheridge, Bill (2014). The Rise of UKIP. Epsom: Bretwalda Books. pp. 13-14. 28 Etheridge, Bill (2014). The Rise of UKIP. Epsom: Bretwalda Books. pp. 4, 44-46, 48. 29 Ford & Goodwin. Usherwood, Simon (2008). "The Dilemmas of a Single-Issue Party: The UK Independence Party". pp. 5-6, 7-8 62, 65, 66-70, 73-75.
15
lead the party but they also were expelled and subsequently jailed for fraud.30
Farage Leadership In 2006, Farage was elected leader of UKIP. He sought to broaden UKIP's image away from that of a single-issue party by introducing an array of social conservative policies, including reducing immigration, tax cut, restoring of grammar schools, and climate change denial.31 In doing so, he sought to capitalise on disenfranchised former Conservatives who had left the party after its leader, David Cameron, had moved in a social liberal direction. Cameron was highly critical of UKIP, referring to them as "fruitcakes, loonies, and closet racists", however the Conservatives' largest donor, Stuart Wheeler, donated £100,000 to UKIP after criticising Cameron's stance towards the Treaty of Lisbon and the European Union.32 After the UK parliamentary expenses scandal, UKIP witnessed an immediate surge in support, aiding them in the 2009 European Parliament election, where they secured 2.5 million votes (16.5%), resulting in 13 MEPs and making them the second largest party after the Conservatives.33 During the election, UKIP outperformed the BNP, whose electoral support base collapsed shortly after.34
The protest during the Lisbon process After the treaty was signed, a European Union Bill was introduced into Parliament in May 2005 and provided for the Constitutional Treaty to be given effect in domestic law subject to the outcome of a referendum (a parliamentary decision). During the negotiations of the European Constitution and after the treaty of Lisbon, the UKIP heled a strong fight against. During the 12 December 2007 Strasburg European Parliament plenary, where the Charter of the Human rights was 30
Explaining support for the UK Independence Party at the 2009 European Parliament elections1 WORKING PAPER March 2011 Richard Whitaker Philip Lynch Department of Politics and International Relations, University of Leicester University Road, Leicester LE1 7RH, p 3. 31 Lynch, Whitaker & Loomes “The UK independence Party” (2012) p. 736. Ford & Goodwin. Usherwood, Simon (2008). "The Dilemmas of a Single-Issue Party: The UK Independence Party". p. 72. 32 Tory donor Stuart Wheeler faces expulsion over UKIP support The Times, 29 March 2010. 33 European Elections 2009 UK results. European Election 2009: UK Results,BBC, 9 June 2009 34 Ford & Goodwin. Usherwood, Simon (2008). "The Dilemmas of a Single-Issue Party: The UK Independence Party". Pp.78, 66-70, 73-75, 77-78.
16
adopted (and after annexed to the Treaty), the UKIP (together with other parties) headed by Farage organised a protest huge protest.35 Following, Farage spoke to Foreign Secretary David Miliband in Lisbon just moments before he signed the treaty and repeated his demand for a referendum, receiving only "a hollow laugh" in reply. Mr. Farage said: "This is just about the most thoroughly dishonest political process I have ever been witness to. This is a constitutional treaty with profound, far-reaching implications and for the British Government to pretend it is something it isn't and deny us a referendum is monstrous."36 Farage also entered in the Irish debate during the referendum elded for the Treaty of Lisbon rettification. Calling for a No vote, Farage compared the Lisbon Treaty referendum with a corrupted elections in Zimbabwe or Afghanistan. He was involved in a number of robust exchanges with Yes campaigners, including Minister for European Affairs Dick Roche who said Ukip was “drawn from the same political gene pool as the neo-fascist British National Party”.37 During the 2008 the UKIP tried to challenge the decision to not hold a referendum two times. The Courts rejected the istances, banning the question as political not juridical. All this unproductive effort creates instability inside the UKIP and Farage leadership was questioned. In September 2009 he resigned passing the leadership to Lord Pearson of Rannoch. However, Pearson was unpopular with the UKIP grassroots, who viewed him as too much of an establishment figure, who was also too close to the Conservatives38.
The new strategy In the 2010 general election, the UKIP fielded 558 candidates and secured 3.1% of the vote (919,471 votes), but took no seats. At this point the parabol of Pearson was concluded and he resigned after less then one year. Farage was reelected with more than 60% of the vote. His strategy was to concentrate the UKIP
35
MEP protest You tube 12-12-2007, Brown belatedly signs EU treaty, BBC, 13 December 2007; 37 UKIP slams 'corrupt' Lisbon vote, Guardian Sat, Oct 3, 2009 38 Lynch, Whitaker & Loomes “The UK independence Party” (2012) p. 737. Ford & Goodwin. Usherwood, Simon (2008). "The Dilemmas of a Single-Issue Party: The UK Independence Party". pp. 82-84. 36
17
efforts in the rural areas, supporting development and gaining seats in local councils. The idea was simple, targeting farmers, handworkers and suburbs inabitants, generally people with a low education, economical difficulties and problems with ethnic minorities.39 In the May 2012 local elections, the UKIP put up 691 candidates in around 2,500 local council election contests. Their average vote share (weighted according to total votes cast) was 13%. During this year, the UKIP had witnessed far greater press coverage and grew its support, with opinion polls placing it at around 10% support in late 2012.40 The UKIP put up a record number of candidates for the 2013 local elections achieving its best ever local Government result, polling an average of 23% in the wards where it stood, and increasing its number of elected councillors from 4 to 14741. It made significant gains
in Norfolk, Lincolnshire and Kent,
taking
15,
16
and
17
seats
respectively.42 This was declared the best result for a party outside the big three in British politics since the Second World War,43 with the UKIP being described as "the most popular political insurgency" in Britain since the Social Democratic Party during the 1980s44. In local elections in 2014, the UKIP won 163 seats, an increase of 128, but did not take control of any Council. In March 2014, Ofcom and the BBC awarded UKIP "major party status" for the 2014 European elections. UKIP received the greatest number of votes (27.49%) of any British party in the 2014 European Parliament election and gained 11 extra MEPs for a total of 24.45 The party won seats in every region of Britain, including its first in Scotland. It was the first time in over a century that a party other than Labour or the Conservatives won the most votes in a UK-wide election.46 The UKIP gained its first elected MP when Douglas Carswell (before with
39
Ford & Goodwin. Usherwood, Simon (2008). "The Dilemmas of a Single-Issue Party: The UK Independence Party". pp. 94-95. 40 Ford & Goodwin. Usherwood, Simon (2008). "The Dilemmas of a Single-Issue Party: The UK Independence Party". p. 9, 41 Tournier Sol Karine 2015. "Reworking the Eurosceptic and Conservative Traditions into a Populist Narrative: UKIP's Winning Formula?". Journal of Common Market Studies. p. 140. And Local elections 2013: Nigel Farage's Ukip surges to best ever showing, winning 150 seats". The Daily Telegraph, London 5 May 2013. 42 Local Council Elections: UKIP Make Big Gains Sky News 4 May 2013. 43 Ukip will change face of British politics like SDP, says Nigel Farage The Guardian, London, 3 May 2013. 44 Ford & Goodwin. Usherwood, Simon (2008). "The Dilemmas of a Single-Issue Party: The UK Independence Party". p. 225. 45 Vote 2014 UK Europe election results. 46 "Farage: UKIP has 'momentum' and is targeting more victories". BBC News 26 May 2014.
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the conservatives) won the seat of Clacton in the 2014 election47, in November in other Conservatives, Mark Reckless, resigned his seat to, before being re-elected for UKIP in Rochester and Strood.48 In the 2015 general election, Carswell held his seat but Reckless lost his.49 In the run-up to the 2015 general election, Farage stated that he would resign as party leader if he did not win South Thanet.50 In failing to do so, he resigned,51 although was reinstated three days later when the party NEC rejected his resignation.52 In 2016 National Assembly for Wales’s election, UKIP nearly tripled their share of votes (from 4.7 per cent to 12.5 per cent) and won seven seats.53 However, they won no seats in the Scottish Parliament, and lost the seat in the Northern Ireland Assembly.54 In the meanwhile, started the campaign for the 2016 national referendum for leaving the EU.
47
"UKIP gains first elected MP with Clacton win. BBC News 10 October 2014. "Rochester: Farage looks to more UKIP gains after success". BBC News 22 November 2014. "Nigel Farage resigns as UKIP leader as the party vote rises. 8 May 2015. 50 Farage, Nigel (15 March 2015). "Nigel Farage: If I lose in South Thanet, it's curtains for me: I will have to quit as Ukip leader". The Telegraph, London. 51 Bloom, Dan "52 minutes that shook Britain: Miliband, Clegg and Farage all resign in election bloodbath. Mirror, London; 8 May 2015. 52 "UKIP rocked by Nigel Farage leadership row". BBC News 14 May 2015. 53 "Welsh Election 2016: Labour just short as UKIP wins seats”. BBC News. 54 "VIDEO: UKIP man says 'we could have done no more' after almost seizing East Antrim seat" 48 49
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“A modern compassionate Conservatism is right for our times, right for our party” David Cameron, 4 October 2005
3. The new Tories: David Cameron & Boris Johnson The UKIP struggle for the referendum to leave the EU helped to mobilize the public opinion, taking the issue to the mainstream. However, the UKIP was not the party who hold the referendum, this task was absolved by the Tory party and in particular by its leader David Cameron, to understand the reasons which carried to the referendum, we have to give to a look the political history also of the Conservative Party. Furthermore, inside the Tories we can find one of the most popular campaigner of the Leave vote the former London mayor, Boris Johnson. Indeed, one of the reasons of Brexit is the deep breach inside the main English party, whose members campaigned both for remain and leave. An issue did not considered by Cameron, denoting a real lack of vision and leadership of the Government establishment, maybe already sure to win.
An old friendship Surprisingly (or maybe not) the two Tory faces of Brexit, which seems to have nothing in common, are instead old friends. They both attended the prestigious private colleges in the country, Eton, before ending up at the University of Oxford. Particularly within the Bullingdon Club55, the most elite clubs of the university, known for its devastating alcoholic and outputs. There they, also, join George Osborne, the today’s shadow chancellor of Cameron and his buddy at the time56. Boris is two years older than David, they probably did not meet a lot at Eton. 55
It is an elite dining society associated with, although not affiliated to, the University of Oxford. Founded in 1780 as a hunting and cricket club, it soon became better known for its raucous, hard-drinking dinners and ostentatious displays of wealth. The vast majority of members previously attended Eton, although a few other major public schools are rapresented. No women are accepted into the society. Membership has always been extremely exclusive, with the handful of new members accepted each year traditionally subjected to "trashing" – the invasion and destruction of their college bedroom by other Bullingdon members. Bullingdon Club: inside the elite Oxford society, the Week 23 September 2015 the Week. 56 Cameron 'desperately embarrassed' over Bullingdon Club days, 4 October 2009, The Guardian.
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And even at Oxford, within Bullingdon, they have little in common. Student renowned
for
his
excellence
in
comparison with the needy David, Boris detonates social origin relatively modest vis-à-vis his companions. He finances The class of '87: Buller men David Cameron (back, second left) piand Boris Johnson (front right), Picture by Gillman & Soame, move over Boris. Dayly Mail 30-08-2013
his
studies
with
grants
obtained through the support and determination of his father, a manager for descendant of King William IV.
Once entered politics, Cameron seeks to develop the image of the average English to be accepted by voters. Deeply regretting the Bullingdon Club, he entered at White's, the most closed of English gentlemen's club, and tried to build up a sober image57. Instead, Boris tells all exploits of his membership, and proudly he continued to participate at reunions58. Two different cultural and social baggages, therefore two different political strategies and an ambiguous relationship during the years.
The rise of David Cameron David Cameron59 started his career in policy in 2000. Despite his position clearly socially liberal he run with the Conservative party. Elected as MP in 2001, he was member of the opposition shadow cabinet, created under Conservative leader Michael Howard60. Quickly Cameron climbed the hierarchy of the party and after Howard’s resignation61, he won the leadership election in 2005. The reactions were not so positive, touched of inexperience and to have an unprofessional 57
Cameron 'desperately embarrassed' over Bullingdon Club days, 4 October 2009, The Guardian. Move over Boris, it's..., Bullingdon Club 2013, 30 August 2013 Dayly Mail. 59 Full name David William Donald Cameron (born 9 October 1966). Born in London to wealthy upper middle-class parents, Cameron was educated at Heather down School, Eton College, and Brasenose College, Oxford. From 1988 to 1993 he worked at the Conservative Research Department, assisting the Conservative Prime Minister John Major, before leaving politics to work for Carlton Communications in 1994, before being elected as MP in 2001. 60 Full name Michael Howard, Baron Howard of Lympne (born 7 July 1941), is a British politician who served as Leader of the Conservative Party from November 2003 to December 2005. He had previously held cabinet positions in the governments of Margaret Thatcher and John Major, including Secretary of State for Employment, Secretary of State for the Environment and Home Secretary. 61 Following the Labour victory in the May 2005 general election. 58
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approach to politics by the other parties62. He moved the party position through more social liberal ones. His political commitments were to give a voice to the new generation and make reforms. This new approach was also directed to the European Union. After his election as Conservative leader, Cameron pledged its Members of the European Parliament to leave the European People's Party group. The "federalist" approach to the European Union and the strong support of to the Treaty of Lisbon were not in line with the new Conservative policy.63 Changing directions, after two decades of Conservative co-operation with the centre-right Christian Democrats, Cameron began immediately the discussions with right-wing and Eurosceptic parties in other European countries, mainly in Eastern Europe, to create a new group. In July 2006 his efforts were rewarded with the born of the Movement for European Reform, which included the Czech Civic Democratic Party, the European Conservatives and Reformists. In the 2009 European Parliament elections, the new group gain 54 MEPs drawn from eight of the 27 EU member states the EPP leader Wilfried Martens64, former Prime Minister of Belgium, has stated "Cameron's campaign has been to take his party back to the centre in every policy area with one major exception: Europe.... I can't understand his tactics. Merkel and Sarkozy will never accept his Euroscepticism.” During the general election of 2010 the Conservatives, led by Cameron, won
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Cameron's relative youth and inexperience before becoming leader have invited satirical comparison with Tony Blair. Private Eye soon published a picture of both leaders on its front cover, with the caption "World's first face transplant a success". On the left, the New Statesman unfavourably likened his "new style of politics" to Tony Blair's early leadership years. Cameron was accused of paying excessive attention to appearance: ITV News broadcast footage from the 2006 Conservative Party Conference in Bournemouth shows him wearing four different sets of clothes within a few hours. In his Guardian column, comedy writer and broadcaster Charlie Brooker described the Conservative leader as "a hollow Easter egg with no bag of sweets inside" in April 2007. On the right of the party, Norman Tebbit, the former Conservative chairman, likened Cameron to Pol Pot, "intent on purging even the memory of Thatcherism before building a New Modern Compassionate Green Globally Aware Party”. Quentin Davies MP, who defected from the Conservatives to Labour on 26 June 2007, branded him "superficial, unreliable and [with] an apparent lack of any clear convictions" and stated that David Cameron had turned the Conservative Party's mission into a "PR agenda". Traditionalist conservative columnist and author Peter Hitchens wrote, "Mr Cameron has abandoned the last significant difference between his party and the established left", by embracing social liberalism. Daily Telegraph correspondent and blogger Gerald Warner was particularly scathing about Cameron's leadership, saying that it alienated traditionalist conservative elements from the Conservative Party. Before he became Conservative leader, Cameron was reported to be known to friends and family as "Dave", though his preference is "David" in public. Labour used the slogan Dave the Chameleon in their 2006 local elections party broadcast to portray Cameron as an ever-changing populist, which was criticised as negative campaigning by the conservative press including The Telegraph, though Cameron asserted the broadcast had become his daughter's "favourite video". 63 White, Michael; Branigan, Tania (18 October 2005). "Clarke battles to avoid Tory wooden spoon". The Guardian, London. p. 1. 64 Wilfried Achiel Emma Martens (19 April 1936 – 9 October 2013) was a Flemish Belgian politician.
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the largest number of seats (30665). However, 20 seats were missing to obtain an overall majority. The labour leader Gordon Brown failed to find an agreement with the Liberal Democrat so he resigned. The Queen Elizabet II named Prime Minister Cameron who started the talks with Nick Clegg66, leading to an agreed Conservative/Liberal Democrat coalition67. His premiership was marked by the ongoing effects of the late-2000s financial crisis; these involved a large deficit in Government finances that he sought to reduce through austerity measures. His administration was however marked by several reforms: welfare, immigration policy,
education
and healthcare.68 Concluded
with
2015
claim
that his
government's austerity programme had succeeded in halving the budget deficit, though critics described the claim as misleading since it was only true of the deficit measured as a percentage of GDP69. Also he privatised the Royal Mail and some other state assets, and legalised same-sex marriage.
The other face of the tories – Boris Johonson Boris Johnson70 is a controversial figure in British politics and journalism. During his experiences as journalist Johnson expressed several time the desire to enter in politics, without being able to stand for any party. Following the retirement of Michael Heseltine, Johnson, despite the scepticism of the local branch, standed as the Conservative candidate for Henley, a Conservative safe seat in Oxfordshire. After becoming a MP in 2001 general election, he used his position as editor of The Spectator to promote his initiatives. Despite his arguable behaviour and his positions more Liberal than Conservitive71, his visibility on the mainstream grew, 65
The Conservatives had last won a general election in 1992. Nicholas William Peter Clegg (born 7 January 1967) is a British Liberal Democrat politician who was the Deputy Prime Minister of the United Kingdom and Lord President of the Council from 2010 to 2015 in the Cameron coalition ministry. 67 Resulted in the nation's first hung parliament since February 1974. Cameron in late 2009 had urged the Liberal Democrats to join the Conservatives in a new "national movement" saying there was "barely a cigarette paper" between them on a large number of issues. The invitation was rejected at the time by the Liberal Democrat leader, Nick Clegg, who said that the Conservatives were totally different from his party and that the Lib Dems were the true "progressives" in UK politics. 68 Morris, Nigel (22 May 2014). "David Cameron sticks to his guns on immigration reduction pledge even while numbers rise". The Independent, London. 69 Nelson, Fraser (15 December 2014). "Why is David Cameron now misleading voters about the deficit?". Spectator. 70 Alexander Boris de Pfeffel Johnson (born 19 June 1964), in New York City to wealthy upper-middle class English parents, Johnson was educated at the European School of Brussels, Ashdown House School, and Eton College. He studied Classics at Balliol College, Oxford, where he was electedpresident of the Oxford Union in 1986. He started his career in journalism at The Times, The Daily Telegraph'sand the Spectator whose he was the editor, before to enter in politic in 2001. 71 Hie speeches in the House of Commons were widely deemed lacklustre and lacking in passion. In his first four years as MP for Henley he attended just over half of the votes in the House of Commons, although by his second term this had declined 66
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convincing the new leader Michael Howard to appoint him vice-chairman of the Party. Re-elected MP in 2005 general election, Johnson supported David Cameron candidature as Conservative leader, after Howard resigned following the lost election. After being successfully selected, Cameron appointed Johnson as the shadow higher education minister, acknowledging his popularity among students. In March 2007, Johnson suggested that he stand for the position of Mayor of London in the 2008 mayoral election. His candidacy was not initially taken seriously within the Conservative Party, who favoured a candidate.72
Another
Supported by Cameron, he gains the primary 79% of the vote73 and then 2008 election Johnson won receiving 43.2%, resigning as MP. During his first mandate he made several unpopular choices74 decreasing the support of the Conservatives. During the 2012 Mayoral election, Johnson sought re-election. Winning again against Ken Livingstone75 (Labour), who was candidate also in the previous election. Managing well the 2012 Olimpic Game76 Johnson had however to face problematic situations. He attended the launch of the World Islamic Economic Forum in London in July 2013, where he answered questions alongside Malaysian Prime Minister Najib Razak77. He joked that Malaysian women attended university in order to find husbands, causing some offence among female attendees78. to 45%. In most cases, he supported the Conservative party line, only rebelling against it five times during this period, when he adopted a more socially liberal attitude than the mainstream party; he for instance voted to repeal Section 28 and supported the Gender Recognition Act 2004. Although initially claiming that he would not do so, he voted in support of the government's plans to join the US in the 2003 invasion of Iraq, and in April 2003 visited occupied Baghdad. By December 2006 he was publicly regretting his decision, describing the invasion as "a colossal mistake and misadventure". 72 Purnell, Sonia (2011). Just Boris: Boris Johnson: The Irresistible Rise of a Political Celebrity. London: Aurum Press Ltd. 73 "Johnson is Tory mayor candidate". BBC News. 27 September 2007. 74 Reverse a number of measures implemented by Livingstone's administration, ending the city's oil deal with Venezuela, abolishing The Londoner newsletter, and scrapping the half yearly inspections of black cabs, although the latter were reinstated three years laterAbolishing the western wing of thecongestion charging zone, he cancelled plans to increase the congestion charge for four-wheel drives. He was subsequently accused of failing to publish an independent report on air pollution commissioned by the Greater London authority. He introduced a public bicycle scheme which had been mooted by Livingstone's administration; colloquially known as "Boris Bikes", the partly privately financed system cost £140 million and was a significant financial loss although it proved popular. He also commissioned the development of theNew Routemaster buses for central London. He also ordered the construction of a cable-car system that crossed the River Thames between Greenwich Peninsula and theRoyal Docks. Johnson condemned the anti-capitalist Occupy Londonmovement that appeared in 2011 and several other personal scandals. 75 Kenneth Robert "Ken" Livingstone (born 17 June 1945) is an English politician who served as the Leader of the Greater London Council (GLC) from 1981 until the council was abolished in 1986, and as Mayor of London from the creation of the office in 2000 until 2008. He also served as the Member of Parliament (MP) for Brent East from 1987 to 2001. A suspended member of the Labour Party, he was on the party's hard left, ideologically identifying as a democratic socialist. 76 Improve the transport around London by making more tickets available and laying on more buses around the capital during the busy period, when thousands of spectators were temporary visitors in London, and also to allow shops and supermarkets to have longer opening hours on Sundays, London 2012: Boris Johnson says capital is prepared". BBC News. 22 July 2012. 77 Dato' Sri Haji Mohammad Najib bin Tun Haji Abdul Razak (born 23 July 1953) is the sixth and current Prime Minister of Malaysia. 78 Topping, Alexandra “Boris Johnson criticised for suggesting women go to university to find husband". The Guardian. London, 8 July 2013.
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Moreover, in 2014 Johnson pushed his biography of Churchill, The Churchill Factor, with media emphasising how Johnson repeatedly compared himself to Churchill throughout it.79 Johnson initially denied that he would return to the House of Commons while remaining Mayor. However, after much media speculation, in August 2014 he sought selection as the Conservative candidate at the 2015 general election80, gaining again a seat as MP. Looking at his story, he has never been a real political mainstream actor, resulting also a mediocre mayor, avoiding to face the big issue of the city. His approach to politics can be defined slightly opportunistic or pragmatic. Biographer Sonia Purnell stated that Johnson regularly changed his opinion on political issues81. Johnson was already widely known for his strongly Eurosceptic Articles in The Daily Telegraph. In 2012, addressing reporters outside his home in north London, Mr. Johnson said the EU was a "political project" that was in "real danger of getting out of proper democratic control. He said he would be backing the Vote Leave campaign - one of two groups seeking official designation as the exit campaign group - but ruled out taking part in TV debates against members of his party82. However, Johnson in early 2016 he decided to backe to out campaign83, running against his friend Cameron.
The Fracture within the Conservative party The two friends may not appear as its grave digger. The friendly contacts which they used to have, ended in October 2010, when Johnson became mayor of London. He complained that the prime minister's policy could lead to "social cleansing of London like in Kosovo". The tension raised constantly in the month before the referendum, with the vacillation of Johnson on which side support. In February 2016, Johnson announced his choice to join the camp Brexit some minutes Ampfner, John "The Churchill Factor review – Boris Johnson's flawed but fascinating take on his hero". The Guardian, 3 November 2014. 80 De Peyer, Robin. "Boris Johnson declares he will stand in Uxbridge and South Ruislip". London Evening Standard 26 August 2014. 81 Purnell 2011, p. 121. 82 Boris Johnson says UK is better off outside the EU, BBC 21 February 2012. 83 Wearden, Graeme "Pound hits seven-year low after Boris Johnson's Brexit decision – as it happened". The Guardian. 22 February 2016. 79
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before its formalization of the referendum date84. From his side, David Cameron, while shocked by the scale and style of Johnson's betrayal, Cameron admitted publicly that the campaign was damaging his relationship with Johnson: “We are still friends – just not such good friends.”85 However, referendum campaign looks like a Tory psycho-drama, with the two friends and main personalities of the Tories defending opposite positions. Indeed, they were friends and rivals since they were at Eton and then in Oxford. For Johnson, the referendum campaign has turned into one elongated opportunity to display to the public his credentials, after having been aside for a while. Thanks to his charisma and his boutade, Johnson extended his audience. Some journalist has compared the referendum vote to an internal Tory primary vote86. And even if for now, both Cameron and Johnson decided to not take the leadership, they decided implicitely which direction the Conservatives will take for the next year. Another fracture in the Conservative party is now exposed, like the internal war in the party that followed the ratification of the Maastricht Treaty by Prime Minister John Major in 1993.
84 85 86
David Cameron and Boris Johnson: the friends who fell out, 22 June 2016, The Guardian. Brexit: face à son «ami» Cameron, Johnson a déjà gagné la partie, 22 June 2016, L’Opinion. David Cameron and Boris Johnson: the friends who fell out, 22 June 2016, The Guardian.
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“No treaty should be ratified without consulting the British people in a referendum” David Cameron, 3 November 2009
4. The age of referendum The Conservatives Government will be remembered as the age of referendums. During the two Cameron’s mandates, three important referendums were held. “Nothing strange” would say an Italian, a Spanish or a Greek, where the referendum is a normal instrument of democracy, but not in the UK. To understand the strong difference in the British system, it has just to be thought that the first referendum, on the alternative vote, was only the second nationwide referendum to be held, following the first on the EEC membership in 1975. Moreover, it was the first that was not merely consultative; being "post-legislative" and therefore committing the Government to give effect to its decision.
The alternative vote referendum Right after his election Cameron held the referendum on the vote system, honouring the Conservative – Liberal Democrat Coalition Agreement. The referendum concerned whether to replace the present "first-past-the-post" system with the "alternative vote" (AV) method, already negotiated by the Labour party and the Lib-dems. The proposal to introduce AV was rejected by the electorate on 5 May 2011. On a turnout of 42.2 per cent, 68 per cent voted No and 32 per cent voted Yes. Ten of the 440 local counting areas recorded 'Yes' votes above 50 per cent; six in London, and those in Oxford, Cambridge and Edinburgh Central and Glasgow Kelvin in Scotland. The AV referendum was a success for Cameron and the Conservative party, which was the only of the mainstream parties to support the “NO” vote.
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The Scottish independence referendum After 3 years from the previous one, Cameron had to face the second referendum of his career. The Scottish National Party (SNP) committed to holding a referendum in its manifesto for the 2007 Scottish Parliament election. Despite the obtained majority in the Scottish Parliament it did not manage to hold the referendum87. The SNP repeated its commitment to hold a referendum when it published its 2011 Scottish parliamentary election manifesto.88 Gained an overall majority, with 69 of the 129 seats, gaining a strong mandate to hold an independence referendum.89 In January 2012, the UK Government decided not to stop the referendum, instead offered to legislate providing the Scottish Parliament with the powers to hold it. 90 This would set "terms of reference for the referendum", such as its question(s), elector eligibility and which body would organise the vote.91 Negotiations continued between the two governments until October 2012, when the Edinburgh Agreement was reached.92 The Scottish Independence Referendum (Franchise) Act 2013 was passed by the Scottish Parliament on 27 June 2013 and received Royal Assent on 7 August 2013.93 On 15 November 2013, the Scottish Government published Scotland's Future, a 670-page white paper laying out the
The press was largely hostile towards the SNP, with a headline for The Scottish Sun in May 2007 stating – along with an image of a hangman's noose – "Vote SNP today and you put Scotland's head in the noose". As a result of that election, the SNP became the largest party in the Scottish Parliament and formed a minority government led by the First Minister, Alex Salmond. The SNP administration launched a 'National Conversation' as a consultation exercise in August 2007, part of which included a draft referendum bill, the Referendum (Scotland) Bill. After this, a white paper for the proposed Referendum Bill was published, on 30 November 2009. It detailed 4 possible scenarios, with the text of the Bill and Referendum to be revealed later. The scenarios were: no change; devolution per the Calman Review; further devolution; and full independence. The Scottish government published a draft version of the bill on 25 February 2010 for public consultation; Scotland's Future: Draft Referendum (Scotland) Bill Consultation Paper contained a consultation document and a draft version of the bill. The consultation paper set out the proposed ballot papers. the mechanics of the proposed referendum, and how the proposed referendum was to be regulated. Public responses were invited. The bill outlined three proposals: the first was full devolution or 'devolution max', suggesting that the Scottish Parliament should be responsible for "all laws, taxes and duties in Scotland", with the exception of "defence and foreign affairs; financial regulation, monetary policy and the currency", which would be retained by the British government. The second proposal outlined Calman-type fiscal reform, gaining the additional powers and responsibilities of setting a Scottish rate of income tax that could vary by up to 10p in the pound compared with the rest of the UK, setting the rate of stamp duty land tax and "other minor taxes", and introducing new taxes in Scotland with the agreement of the UK Parliament, and finally, "limited power to borrow money". The third proposal was for full independence. In the 3rd Scottish Parliament only 50 of 129 MSPs (47 SNP, 2 Greens, and Margo MacDonald) supported a referendum. The Scottish government withdrew the bill after failing to secure opposition support. 88 "SNP launch 'Re-elect' manifesto with independence referendum vow"STV. STV Group. 89 "Scottish election: SNP wins election". BBC 6 May 2011. 90 Clegg, David (17 January 2012). "Advocate General says SNP's referendum plans would be 'contrary to the rule of law'". The Courier DC Thomson. 91 "Independence referendum: Scotland facing constitutional chaos". The Courier 11 January 2012. 92 "Timeline: Scottish independence referendum". BBC. 15 October 2012. 93 Text of the Scottish Independence Referendum (Franchise) Act 2013. As in force today (including any amendments) within the United Kingdom, from legislation.gov.uk. 87
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plane in case of independence, and definy the means through which Scotland might become an independent country. Committing also to remain in the EU after the Leave. However, the final vote was 55.3% against independence,94 with a turnout of 84.6% of the eligible voters. Another victory for Cameron who has negotiated a new Bill95, giving more power to the Scottish parliament, before the vote. Scottish independence referendum results 2013
Cameron’s idea of Referendum Cameron statement of 19 September 2014, commenting the result, clearly highlight his idea of the referendum as a democracy obligation for the government: “Let us first remember why we had this debate – and why it was right to do so. The Scottish National Party was elected in Scotland in 2011 and promised a referendum on independence. We could have blocked that, we could have put it off but just as with other big issues, it was right to take - not duck - the big decision. I am a passionate believer in our United Kingdom – I wanted more than anything for our United Kingdom to stay together. But I am also a democrat. And it was right that we respected the SNP’s majority in Holyrood and gave the Scottish people their right to have their say.” said Cameron96. Not the only outcome, Cameron continues his statement clearly defining what will be his idea of referendum of independence, Yer or No, in or out. Form the referendum, should come a clear decision, empowering the Government to take actions: “Let us also remember why it was right to ask the definitive question, Yes
94 95 96
Scottish referendum: Scotland votes no to independence BBC News. 19 September 2014. Scottisch National Party Manifesto, 2011 Scottish Independence Referendum: statement by the Prime Minister, UK. gov, 19 Sept 2014.
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or No. Because now the debate has been settled for a generation or as Alex Salmond has said, perhaps for a lifetime. So there can be no disputes, no re-runs – we have heard the settled will of the Scottish people. Scotland voted for a stronger Scottish Parliament backed by the strength and security of the United Kingdom and I want to congratulate the No campaign for that – for showing people that our nations really are better together.” continued Cameron. Following. Cameron using other words, opened the door of the Brexit referendum: “Just as the people of Scotland will have more power over their affairs, so it follows that the people of England, Wales and Northern Ireland must have a bigger say over theirs. The rights of these voters need to be respected, preserved and enhanced as well… This referendum has been hard fought. It has stirred strong passions. It has electrified politics in Scotland, and caught the imagination of people across the whole of our United Kingdom. It will be remembered as a powerful demonstration of the strength and vitality of our ancient democracy. Record numbers registered to vote and record numbers cast their vote. We can all be proud of that. It has reminded us how fortunate we are that we are able to settle these vital issues at the ballot box, peacefully and calmly. For the second time in his career, Cameron faced and won a referendum he did not want but which he supported. Indeed, this speech preannounced the future physiognomy of the Leave referendum, as a demonstration of democracy which also gives a real and strong commitment to the government.
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UK Challenges to the EU (EC) Membership DATE
ISSUE
1973
The UK joins the European Economic Community (EEC)
1974
Labour, under leader Harold Wilson, promises a referendum on whether to remain in the EEC
1975
The public endorse the UK's membership of the EEC, with 67% voting to stay in at a referendum
1983
Labour, under leader Michael Foot, pledge to negotiatiate to leave the EU "within the lifetime" of the following Parliament. Labour lose the election
1989
Margaret Thatcher signals the UK will join the European Exchange Rate Mechanism. She resigns 18 months later
1992
The Maastricht Treaty is signed, creating the modern day EU. The UK exits the European Exchange Rate Mechanism
1993
Tory rebels fail in campaign for a referendum on the Maastricht Treaty. Parliament approves the treaty.
1996
Businessman Sir James Goldsmith launches the Referendum Party to campaign for a public vote on the UK's membership of the EU. It secures 3% of the vote at the 1997 general election
1997
Labour say a yes vote in a referendum is a "pre-condition" for Britain for joining the single currency
1999
The euro is launched. The UK opts out
2004
Labour Prime Minister Tony Blair says a referendum will be held on ratification of the European Constitution Treaty. No date for the poll
2005
Labour, the Conservatives and the Liberal Democrats all promise a referendum on whether to ratify the EU Constitution
2006
The cross-party Better Off Out Group, seeking the UK's withdrawal from the EU, is launched
2007
The European Commission proposes the Lisbon Treaty. The Labour Government says it is a different document, amending not overwriting existing treaties, and a referendum is not needed. Leader David Cameron gives a "castiron guarantee" to hold a referendum on any treaty emerging from the Lisbon process if he becomes PM Lib Dem leader Nick Clegg calls for an "in-out" referendum on UK membership of the EU. MPs reject a referendum on whether the Lisbon Treaty should be ratified by 63 votes
2008 2008
The High Court rejects calls for a judicial review of the decision by Tory MP Bill Cash and businessman Stuart Wheeler. They claim ratification without a referendum was illegal
2009
David Cameron admits he will not be able to hold a referendum on the Lisbon Treaty because it has been ratified by all EU member states. But he says, if elected, no future substantial transfer of powers will take place without the approval of the British people The Lib Dems pledge to hold an "in-out" referendum the next time there is a "fundamental change" in the EU's treaty arrangements
April 2010 May 2010
A new generation of more eurosceptic Conservative MPs is elected to Parliament
February 2011
Tory MP Peter Bone fails in a bid to secure a future "in-out" if big changes are made to EU treaties. Mr. Bone said a second referendum on UK membership should be triggered if the public initially vetoed plans to hand more powers to Brussels but his plan to change the Europe Bill is rejected People's Pledge campaign for a referendum is launched.
March 2011 September 2011
A petition calling for a referendum on EU membership, signed by 100,000 people, is handed into Downing Street
September 2011
More than 100 Tory MPs meet to discuss how to reconfigure the UK's relationship with Europe in wake of the eurozone financial crisis
October 2011
Backbench business committee agrees to hold a Commons debate on EU membership
2 October 2011
The motion calling for a referendum is defeated in the Commons by 483 votes to 111
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Chapter II - The Brexit referendum 1.
The commitment for a Brexit referendum
2.
Negotiations ahead of the UK's EU referendum
3.
Overviews of the campaign
Introduction This Chapter analyses the period opened with the internal agreement of the Conservatives on the Brexit referendum, ahead of the 2015 election, to the referendum results. In particular, it is focused on the approach of the main political party to the campaign, highlighting the distance between the establishment of all the major parties and the UK citizens. The negotiations conduced by Camerum with the European Union and the other European leaders ended with light reform agreement, giving UK some flexibility on immigration and more power on the issue related to Eurozone and Financial system. Not enough to be shown as a great result to the electorate. All the major campaing to remain were still asking for more reform and low presence of the EU in UK’matters. Not exactly a message of affection, which could not touch the feelings of the voters. On the other side, the leave campaign focused on the indentity heritage of the British to defend against the attempt to voate on European create a European identity.
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“This will be a once-in-a-generation moment to shape the destiny of our country.” David Cameron, 19 February 2016
1. The commitment for a Brexit referendum To find the roots of the Brexit referendum we have to go back again in 2012. Aside the May NATO summit of Chicago, the British Prime Minister David Cameron and the other Conservatives William Hague and Ed Llewellyn97 discussed the idea of using the commitment of a referendum on the EU as key to ensured the consent of Eurosceptic wing of the Conservative Party for the 2015 general election, which was getting close to the UKIP98. Again for electoral reasons Cameron accepted to hold a referendum. The promise was maintained in January 2013, when the Conservatives Party leader presented the party’s program he concluded the commitment to negotiate a more favourable arrangements for continuing British membership of the EU, before holding a referendum on whether the UK should remain in or leave the EU. During his speech at BBC99 Cameron highlighted that the European Union (in particular the Eurozone) had changed massively: “so the right thing is to reaccess where we are and to work out what is in the British national interest.” In the Cameron is mind, this British national interest would have been a better settlement for UK in the Union, a reform of the European Union and a referendum to let British people decide.
97
Edward David Gerard Llewellyn (born 1964) is a British political adviser who was the Downing Street Chief of Staff under former Prime Minister David Cameron. 98 Waiting his flight Cameron, Hague and Llewellyn decided to run the referendum eating a pizza. Which is kind of hilarious if you think over. At Tribune, Chicago. Kim Jansen "Fateful O'Hare Airport pizza meeting sealed Brexit vote deal: British media”. Chicago Tribune, 24 June 2016. 99 "David Cameron Pledges EU Referendum if Conservatives Win Next Election". BBC, 24 January 2013.
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The Referendum Bill Consequently, in May 2013, the Conservative Party published a draft of EU Referendum Bill100, outlining their plans for the renegotiation and a clear commitment for a referendum on the EU membership by the 2017. Many Tories complained because the plan for an in-out EU referendum were not mentioned in the Queen's Speech, which lays out the government's plans for the following year. However, Cameron reassued that amending the Queen’s Speech is not against the law.101 The draft legislation was taken forward as a Private Member's Bill by Conservative MP James Wharton102 in the House of Commons, obtaining the support of the Conservatives. The Bill received its Second Reading on 5 July 2013, passing by 304 votes to none, after almost all Labour MPs and all Liberal Democrat MPs abstained, and then was introduced to the House of Lords in December 2013, where members voted to block the bill.103 An attempt by the Conservative MP Bob Neill to introduce an Alternative Referendum Bill to the Commons failed104. The Bill does not provide a lot of information, just a simple commitment for a referendum on the EU membership by the end of December 2017. No timing was specified, other than requiring the Secretary of State to bring forward orders by the end of 2016. Uncertainty on the issue was raised when the Conservatives party did not obtain a clear majority at the general election in 2015. Thus, the provisions of the Bill maybe had lost their efficacy105. However, the legislative agreement between the Lib-Dem and the Conservatives contained the commitment to hold the referendum, so no issue was raised.
100
DRAFT European Union (Referendum) Bill The prime minister said it was a "complete misconception" to suggest the MPs were opposing the Queen's Speech as a whole by tabling the amendment, and repeated his position that he was "relaxed" about how backbenchers voted. Ministers, including several who have said they would vote to leave the EU if a referendum was held now, will be required to abstain although the amendment is unlikely to pass because Labour and the Lib Dems are set to vote against. "David Cameron: EU referendum bill shows only Tories listen". BBC. 14 May 2013. 102 "Private Members' Bills". Parliament of the United Kingdom. 8 August 2013. 103 "EU referendum bill blocked in Lords". Financial Times. 31 January 2014. 104 After a debate on 17 October 2014, it passed to the Public Bills Committee, but because the Commons failed to pass a money resolution, the Bill was unable to progress further before the Dissolution of Parliament on 27 March 2015. 105 European Union (Referendum) Bill, Bill 11 of 2013–14 Research Paper 13/41 (page 1), 28 June 2013; accessdate 5 July 2014. 101
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The support to the referendum was mainstreamed by the other parties. The UK Independence Party (UKIP), the British National Party (BNP), the Green Party,106 the Democratic Unionist Party107 and the Respect Party108 all showed a great support to it. Labourists, under Ed Miliband’s109 leadership, endorsed the referendum, only in case of the proposal of further transfer of powers from the UK to the EU.110 Liberal Democrats pledged to hold a referendum only in the event of changes in the EU treaties.111
European Union Referendum Act 2015 The commitment for a referendum was included in the Queen's Speech on 27 May 2015.112 It was suggested at the time that Cameron was planning to hold the referendum in October 2016,113 but the European Union Referendum Act 2015, which authorised it, came before the House of Commons the following day, just three weeks after the election. On the bill's second reading on 9 June, members of the House of Commons voted by 544 to 53 in favour of it, endorsing the principle of holding a referendum, with only the Scottish National Party voting against.114 In contrast to the Labour Party's prior position prior to the 2015 general election under Miliband, the new acting leader, Harriet Harman115 committed her party to support plans for an EU referendum by 2017.116 To enable the referendum to finally take place, the European Union Referendum Act 2015 (2015 c. 36) was passed by the Parliament of the United Kingdom. It was specially extended outside the United Kingdom to also include 106
"Yes to an EU Referendum: Green MP Calls for Chance to Build a Better Europe". Green Party of England and Wales. DUP manifesto, 2015, mydup.com. Retrieved 28 May 2016. 108 "The EU". Respect Party. Retrieved 26 April 2014. 109 Edward Samuel "Ed" Miliband (born 24 December 1969) is a British politician who was Leader of the Labour Party as well as Leader of the Opposition between 2010 and 2015. He has been the Member of Parliament (MP) for Doncaster North since 2005 and served in the Cabinet from 2007 to 2010 under Prime Minister Gordon Brown. 110 "Miliband: EU poll is 'clear and present danger' to jobs". BBC News. Retrieved28 May 2016. 111 "Liberal Democrats Hint Cameron's EU Referendum Plan Negotiable". Reuters, 15 April 2015. Retrieved28 May 2016. 112 "Queen's Speech 2015: EU referendum, tax freeze and right-to-buy". BBC News. Retrieved 4 June 2015. 113 Watt, Nicholas.” David Cameron may bring EU referendum forward to 2016". The Guardian. Retrieved 9 November 2015. 114 "EU referendum: MPs support plan for say on Europe". BBC News. Retrieved 17 May 2016. 115 Harriet Ruth Harman, Queen’s Counsel (London, 30 July 1950) is a British lawyer and Labour Party politician who has been a Member of Parliament(MP) since 1982, first for Peckham, and then for its successor constituency of Camberwell and Peckham since 1997. She has served in various Cabinet and Shadow Cabinet positions and, in her role as Deputy Leader of the Labour Party, she was twice the Acting Leader of the Labour Party and Leader of the Opposition: from May to September 2010 and from May to September 2015. 116 "Labour to back EU referendum bill, says Harman". BBC News. 24 May 2015. Retrieved 9 January 2016. 107
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and so took also take legislative effect in Gibraltar and other OTA finally it received Royal Assent on 17 December 2015. The Act was in turn confirmed, enacted and implemented in Gibraltar by the European Union (Referendum) Act 2016 (Gibraltar) (Act No. 2016-01 (Legislation Number (L.N.) 2016/034, as amended by L.N. 2016/035, L.N. 2016/082 and L.N. 2016/120))), which was passed by the Gibraltar Parliament, receiving the assent of the Governator of Gibraltar on 28 January 2016.
The referendum criteria The Referendum Act contains all the criteria on which the referendum is based. After a lot of speculations and postposition, the date of the referendum was finally disclosed, so opening the campaing. The elegibility criteria caused complaints because it cut out some residents of UK.
The Date - During his 2015 campaing, Cameron promised a fast decision on the referendum data, but after the election, he seemed to have changed idea to hold the referendum in 2015. Strong complaints came from the First Ministers of Northern Ireland, Scotland, and Wales, who co-signed a letter to Cameron asking him not to hold the referendum in June 2015, as devolved local elections were scheduled to take place the previous month. These elections had already been postponed for a year to avoid a clash with the 2015 General Election117. Cameron refused this request, saying people were able to make up their own minds in multiple elections if spaced a short time from each other.118 In February 2016, Cameron announced that the Government was to recommend that the UK should remain in the EU and that the referendum would be held on 23rd June119, marking the start (even if unofficial) of the campaign. He also announced that Parliament would enact secondary legislation relating to the European Union Referendum Act 2015
117
The 2011 Fixed Term Parliament Act is an Act of the Parliament of the United Kingdom that introduced fixed-term elections to the Westminster parliament. Under the provisions of the Act, parliamentary elections must be held every five years, beginning in 2015. Therefore, other local elections, which converged in a close date, have to be postponed. 118 "David Cameron just gave a massive hint about when the EU referendum will happen". The Independent. Retrieved 17 May 2016. 119 "EU referendum: Cameron sets June date for UK vote". BBC News, 20 February, 2016
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on 22 February. The official campaign period should have started from Friday 15th April 2016 (until the day of the poll on Thursday 23rd June 2016), but campaigners (expecially the leave one) had already started their actions. After the 20th February, parties started to endorse one or the other position. MP and ministers of the UK Government were free to campaign on either side120.
Eligibility to vote - The right to vote in the referendum of the United Kingdom was defined by the legislation as limited to residents of the United Kingdom, who were either also commonwealth citizens under the British Nationality Act 1948 (which includes British citizens and other British nationals). Those who were also citizens of the Republic of Ireland, or both. Members of the House of Lords were able to vote in the referendum. Residents of the United Kingdom who were citizens of other EU countries (other than the United Kingdom) were not allowed to vote unless they were also citizens of the Republic of Ireland, of Malta or of the Republic of Cyprus. The Representation of the People Acts 1983 (1983 c. 2) and 1985 (1985 c. 50), as amended, also permitted certain British citizens (but not other British nationals), who had once lived in the United Kingdom, but had since and in the meantime lived outside of the United Kingdom, but for a period of no more than 15 years, to vote121. Residents of the Crown Dependencies (which are not full part or part of the United Kingdom), namely the Isle of Man, the Bailiwick of Jersey and the Bailiwick and Islands of Guernsey, even if they were British citizens, were excluded from the referendum unless they were also previous residents of the United Kingdom (that is to say, England and Wales, Scotland and Northern Ireland).122 Also under the provisions of the
120
There is an excepition to this free right of campaign. The Cabinet collective responsibilit. Also known as collective ministerial responsibility is a constitutional convention in governments using the Westminster System that members of the cabinet must publicly support all governmental decisions made in Cabinet, even if they do not privately agree with them. This support includes voting for the government in the legislature. Gay, Oonagh; Powell, Thomas. Research Paper 04/82: "The collective responsibility of Ministers – an outline of the issues", Parliament and Constitution Centre, the House of Commons Library.15 November 2004. p. 7 121 "Background to the UK's EU referendum 2016". Retrieved 28 June 2016. 122 Some protests by some Islanders were registered, who claimed that they, as full British citizens under the British Nationality Act 1981 and living within the British Islands, should also have been given the opportunity to vote in the referendum, as the Islands, although not included as if they were part of the United Kingdom for the purpose of European Union (and European Economic Area (EEA)) membership (as it is the case for Gibraltar), they and the Islanders would also have been significantly affected by the outcome and impact of the referendum. "Lord of the Rings star launches Manx EU referendum petition". BBC News. 29 January 2016. Retrieved 15 February 2016
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Representation of the People Act 2000 postal ballots were also permitted in the referendum and were sent out to eligible voters some three weeks ahead of the vote (2 June 2016). The minimum age for voters in the referendum is set to 18 years, in line with the Representation of the People Act, as amended123. The deadline to register to vote was initially at midnight on 7 June 2016 but this was extended by 48 hours because of technical problems with the official registration website on 7 June caused by unusually high web traffic124.
Referendum question - Research by the Electoral Commission confirmed that it recommended question "was clear and straightforward for voters, and was the most neutral wording from the range of options... considered and tested", citing responses to its consultation by a diverse range of consultees.125 The agreement on the question was reached in September 2015 by the Government, shortly before the bill's third reading.126 The question that appeared on ballot papers was: “Should the United Kingdom remain a member of the European Union or leave the European Union? “, with YES or NO as possible answers, to be marked with a single “X”.
123
A House of Lords amendment proposing to lower the minimum age to 16 years was rejected. Some supporters of the Leave campaign, including the Conservative MP Sir Gerald Howarth, criticised the government's decision to extend the deadline, alleging it gave Remain an advantage because many late registrants were young people who were considered to be more likely to vote for Remain. Almost 46.5 million people were eligible to vote. 125 "Referendum on membership of the European Union: Assessment of the Electoral Commission on the proposed referendum question". United Kingdom Electoral Commission. Retrieved 5 September 2015. 126 Watt, Nicholas; Syal, Rajeev (1 September 2015). "EU referendum: Cameron accepts advice to change wording of question". The Guardian. Retrieved 13 September 2015. 124
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“I want my country back. I want Britain to be Britain” during a BBC Question time Unnamed woman, 16 April 2016
2. The main issues of the referendum Once started the campaign, it was focused on five main aspects. (i) Immigration, which involves both Europeans and Refugees. (ii) Economy and Trade, with a huge and unsolved dispute on which directions EU and UK should concentrate its trade. (iii) Contribution to the EU, critics were blaming EU to steel British money and pro-european asking for reforms. (iv) Sovereignty with both Leave and Remain campaigner pushing EU to low its legislative production. (v) Identity, both of Leave and Remain campaing refusing the idea of EU identity. However, these issues were often overlapping, having economy, society and legislation a link one to the other.
Immigration One of the central pillars of the EU is the Freedom of movement and residence ofpersons in the EU is the cornerstone of Union citizenship, which was established by the Treaty of Maastricht in 1992127 under the concept of the Euroean Citizenship. The Lisbon Treaty confirmed this right, which was also included in the general provisions on the Area of Freedom, Security and Justice, transposing the acquis in the Article 3(2) of the Treaty on European Union (TEU) and Article 21 of the Treaty on the Functioning of the European Union (TFEU); Titles IV and V TFEU. The UK participate to this provision of the treaty, choosing not to opt out. Another key milestone in establishing an internal market with free movement 127
In the 1957 the Treaty establised the European Economic Community (1.1.1, 3.1.3 and 3.1.4), covered the free movement of workers and freedom of establishment, and thus individuals as employees or service providers. The Treaty of Maastricht introduced the notion of EU citizenship (See Part Two of the TFEU entitled ‘Non-discrimination and citizenship of the Union’) to be enjoyed automatically by every national of a Member State. It is this EU citizenship that underpins the right of persons to move and reside freely within the territory of the Member States. The Lisbon Treaty confirmed this right, which is also included in the general provisions on the Area of Freedom, Security and Justice.
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of persons was the conclusion of the two Schengen agreements128, this provision were leater transfered by protocol into the Amsterdam Treaty (5.12.4). The Schengen acquis abolish the internal border controls and harmonise the external ones, visa policy and the police and juridical cooperation. However, the UK decided not to be part of the Schengen area, having opted out back in 1993 129 (some provisions apply thanks to informal cooperation130), so it retain the power to enforce border control. The problem of the immigration started in the late 1990s, as the EU expanded eastwards inglobating poorer post-communist states such as Poland and Romania. In the new millennium, the immigration grown constantly, thanks also to new comprehensive legislation131, which encouraged citizens to exercise their right to move and reside freely within the territory of the Member States: (i) cutting back administrative formalities to the bare essentials, (ii) providing a better definition of the status of family members, and (iii) limiting the scope for refusing entry or terminating the right of residence. The result of this directive became more evident at the end of the decade when the implementation was fully digested by the population and the transitional period was finished132.
128
i.e. the Agreement proper of 14 June 1985, and the Convention implementing the Schengen Agreement, which was signed on 19 June 1990 and entered into force on 26 March 1995. Initially, the Schengen implementing Convention (signed only by Belgium, France, Germany, Luxembourg and the Netherlands) was based on intergovernmental cooperation in the field of justice and home affairs. A protocol to the Amsterdam Treaty provided for the transfer of the ‘Schengen acquis’ (5.12.4) into the Treaties. Today, under the Lisbon Treaty, it is subject to parliamentary and judicial scrutiny. As most Schengen rules are now part of the EU acquis, it has no longer been possible, since the EU enlargement of 1 May 2004, for accession countries to ‘opt out’ (Article 7 of the Schengen Protocol). 129 There are currently 26 full Schengen members: 22 EU Member States plus Norway, Iceland, Switzerland and Liechtenstein (which have associate status). Ireland and the United Kingdom are not parties to the Convention but can ‘opt in’ to selected parts of the Schengen body of law. Instead, the 2 countries maintain a Common Travel Area with passport-free travel for their citizens between them and the three British Crown Dependencies of Jersey, Guernsey and the Isle of Man. Denmark, while part of Schengen, enjoys an opt-out for any new justice and home affairs measures, including on Schengen, although it is bound by certain measures under the common visa policy. Bulgaria, Romania and Cyprus are due to join, though there are delays for differing reasons. Croatia began the application process to accede to the Schengen area on 1 July 2015. 130 The UK formally request to participate in certain provisions of the Schengen acquis, Title III relating to Police Security and Judicial Cooperation, was accepted by a 2004 Council decision that came into effect on 1 January 2005. UK can use the Schengen Information System, a governmental database used by European countries to store and disseminate information on individuals and property. 131 Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004. 132 The Treaty of Accession signed on 16 April 2003 allowed the ‘old’ EU-15 Member States to apply ‘transitional arrangements’ to nationals of the Member States which acceded to the EU in 2004. This meant that certain limitations on the free movement of persons could be maintained for citizens of the ‘new’ Member States for a period of up to seven years from the date of their accession. In the case of Bulgaria and Romania, the period ran from 1 January 2007 until 1 January 2014 and in the case of Croatia has applied since 1 July 2013, though, after the initial two-year period ended in July 2015, only Austria, Malta, the Netherlands, Slovenia and the United Kingdom are still applying restrictions. Free movement of persons, Eurpoean Parliament, May 2016.
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The main concern arrived from the UK. Generaly seeking high profile immigration for the sector of fincance and trade, instead the UK started to absorb low-paid workers, mainly in the leisure and construction industries, they were Migration between EU and UK 2015
Source: Eurostat 2015
moving to the UK to fund families back home or to pay their studies. Migrants tended to cluster in poor urban areas and changed the face of some communities, usually refusing to fully integrate in the new life-style. According to Eurostat133, 3.3m EU citizens in Britain come from other EU countries. The biggest community was the Polish with 900,000 immigrants, followed by the Irish and Germans with 400,000 and 300,000. Furthermore, the migrants’ crisis, consequently the Arab Spring and the Libian and Syria civil wars, opened a new problem, stressed from the 2015 with more thant 1.83 million irregular border crossings134. Migrants arrive in the EU Member States from the EU external borders. Under the Dublin Regulation135, they should apply for asylum in the first EU country they enter, which was normally a Member State on the EU external borders. However, a large number of migrants
133
Migration and migrant population statistics Eurostat May 2016 However, this does not give an adequate overview of the people entering the EU irregularly without applying for asylum. This statistic count only the certificate migrants. 135 The Dublin Regulation establishes the Member State responsible for the examination of the asylum application. The criteria for establishing responsibility run, in hierarchical order, from family considerations, to recent possession of visa or residence permit in a Member State, to whether the applicant has entered EU irregularly, or regularly. The first Doublin Convention of 1990 (into force on 1 September 1997) was replaced by The Dublin II Regulation was adopted in 2003. In 2008 the Europea Commission proposed amendments creating an opportunity for reform of the Dublin System. The Dublin III Regulation (No. 604/2013) was approved in June 2013 (into force on 19 July 2013) “Article 33 mechanism” confirms the principle on the previous two i.e.; that the first Member State where finger prints are stored or an asylum claim is lodged is responsible for a person's asylum claim. Migrantion and home Affairs Europan Commission 134
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traveled across Europe to seek asylum either because they had friends and family there or because they believed they would enjoy better living conditions in these countries. Illegal border crossings per years
Migration and asylum, Eurpean Parliament
Germany (which suspended the provision of the treaty during the 2015 summer) 136 and Sweden were the most touched by this phenomenon but also UK with 23,805 asylum applicants (between July and December 2015137) crossing the Canel on the Calais138 tunnel, hid behind tracks. To fight the crisis, the European Commission lauched the European Agenda on Migration139, both providing additional funding to Frontex 140 joint search and rescue operations (Operation Triton) and creating a legal resettlement of people to Europe141, thanks to a quotas 136
During the 2015 European refugee and migrant crisis, on 24 August 2015, Germany decided to make use of the "sovereignty clause" to voluntarily assume responsibility for processing Syrian asylum applications for which it is not otherwise responsible under the criteria of the Regulation, followed by Czech Republic. "Germany: Halt on Dublin procedures for Syrians". Retrieved 8 March 2016 137 Migration and asylum, European Parliament 138 Calais opens first migrant camp since Sangatte closed’. The Telegraph, 15 January 2015. Retrieved 22 June 2015. 139 The decision of the Europan Council was taken by majority vote, with the Czech Republic, Hungary, Romania, and Slovakia voting against and Finland abstaining.Refugee Crisis: European Commission takes decisive action, European Commission, 9 September 2015 140 The FRONTEX European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union 141 The two main funding tools used to this effect are the Asylum, Migration and Integration Fund (AMIF) and the Borders and Visa strand of the Internal Security Fund (ISF). Both are part of what the EU spends on home affairs, which also includes the financing of relevant EU agencies, amounting to a total budget of €9.26 billion for the 2014-2020 period Migration and asylum, European Parliament
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system142. The UK Home Secretary Theresa May, argued "Such an approach would only… encourage more people to put their lives at risk", so the UK (after some negotiations) decided to opt-out143. The system never worked properly, due to the opposition of some countries, having relocated in just 272 refugees (after 6 months) from Italy and Greece144, and it is under review. The UKIP, and other right-wing eurosheptic parties, used the convergence of these two migratory flux to get the support of the working class. Blaming the EU for allowing migrants stepping in the UK, taking jobs, putting pressure on public services (particularly schools, hospital and housing) and raising crime rate. Also they used the fear of the UK citizens for the possibility of thousands of Islamic migrants coming in the UK. The supporters to Remain argued that stay in the EU would guarantee the access to the European free market for labour. Businesses could plug skills gaps quickly and cheaply, meaning they would be more productive and profitable, so to invest in job creation and growth. Even the poor migrants were helping the growth, doing the Jobs that the Britons refused to do because its low profile. Moreover, the EU workers pay taxes in the UK, helping to fund public services. Studies shown that, on the whole, EU migrants pay more into the system than they take out of it. Leave the EU would mean fewer jobs, not more. Generally, the EU did not alter its policy of the free movement of people. But UK has the possibility to tightening welfare rules for migrants, so discouraging migrants to come or to stay without a job. Furthermore, more than 1.2m British people currently live in other EU member states, primarily in Spain, Ireland, France and Germany. However this last issue that was not taken a lot into account during the campaign. Analysing the polling, the discontent with the scale of migration to the UK has been the biggest concern of Britons. Thus, the referendum has been turned into a contest on whether people were happy to accept free movement in return for free
142 143 144
European Solidarity: A Refugee Relocation System Europan Commission EU plans migrant quotas, Britain opts out Reuters 13 May 2015 Brussels migration chief admits EU has ‘failed’ after only 272 refugees relocated the Express 14 January 2016
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trade145. A columnist for The Times, Philip Collins146, went a step further in his analysis: "This was a referendum about immigration disguised as a referendum about the European Union"147.
Economy – Single Market and International Trade Born as customs union, the European Single Market was the original core objective of the EU (EEC)148 in 1993, which established the free movement of goods, capitals and services (together with the free movement of people). The provision on goods, now Article 30 TFEU, prohibits member states from levying any duties on goods crossing a border, both goods produced within the EU and those produced outside. Once a good has been imported into the EU from a third country and the appropriate customs duty paid, Article 29 TFEU stated that it shall then be considered to be in free circulation between the member states. Furthermore, the Article 110 of the TFEU provides that no Member State shall impose, directly or indirectly, on the products of other member states any internal taxation of any kind in excess of that imposed directly or indirectly on similar domestic products. Another pillar of the Single Market is the Article 63 TFEU, which removes all restrictions on the movement of capital between Member States and between Member States and third countries. The third pillar is the freedom to provide services, now the Article 56. Currenly the EU is developing also the Digital Sigle Market, aimed to create the correct framework for the free movement of Data149. This is a hybrid situation, based Articles 4(2)(a), 26, 27, 114 and 115 TFEU it is implemented by several different directives150. However some areas, especially 145
Mason, Rowena (24 June 2016). "How did UK end up voting to leave the European Union?". The Guardian. London, UK. Retrieved 26 June 2016. 146 Philip James Collins (born 16 May 1967) is a British journalist, academic, banker and speechwriter. 147 Ward, Olivia (25 June 2016). "Toxic Brexit debate has led the UK into political turmoil: Analysis". Toronto Star. Toronto, Canada. Retrieved 26 June 2016. 148 the Delors Commission took the initiative to attempt to relaunch the common market, publishing a White Paper in 1985 identifying 300 measures to be addressed in order to complete a single market. The White Paper was well-received and led to the adoption of the Single European Act in 1993. 149 The Digital Single Market strategy, adopted on the 6 May 2015, includes 16 initiatives to be delivered by the end of 2016. A Digital Single Market (DSM) is one in which the free movement of persons, services and capital is ensured and where the individuals and businesses can seamlessly access and exercise online activities under conditions of fair competition, and a high level of consumer and personal data protection, irrespective of their nationality or place of residence. Digital Single Market European Commission. 150 The Data Protection Directive (95/46/EC) from the 2016 General Data Protection Regulation, the e-Commerce Directive (2000/31/EC), the Telecommunication Package including the e-Privacy Directive (2002/58/EC), the Payment Services Directive (2007/64/EC), the Consumer Rights Directive (2011/83/EU) and the Roaming Regulation (531/2012) which are all
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in the field of services and capitals, had not yet been completely integrated. The access to the Single Market for the UK was fundamental for the UK economy. The EU is an internal market of 500 million citizens with a total GDP across all 28 Member States worth €14tn (£10tn, $16tn). Polling data shows that businesses, on the whole, wants to be in the EU, this because half of all the UK's trade is done with the EU. Moreover, UK companies benefit from the completion initiatives which means new investment and job opportunities. The Leavers agrued that the Single Market pushed to privatize everything, which is to some extent true. The EU Instituions tried to liberalize all sectors of the economy, so, in their intentions, all companies and member states could compete with each other fairly. That means getting rid of state subsidies and public ownership because they distort markets. Some experts agreed with the privatization, asking for public ownership in the vital sectors of the economy. The discussion crossedd all Europe and did not seemed to find a final solution. Indeed, sectors and country were still too different to propose harmonized legisations in every sector. Another issue of the Leavers was the regulation on the Financial services151 (implemented) and the bank union (still under discussion), proposed by the Europan Commission President Barroso and Internal Market and Services Commissioner Barnier152 during the economical 2013 crisis. The main outcome was the establishment of the Single Supervisory Mechanism (EBA)153. This proposal was strongly opposed by the City of London, and therefore by the British governmert, declaring the UK will opt out. The Remain campaigners used the possibility to loose the access to the Single Market (not only as market but also as integrated supply chain and investments area) as main issue of their speeches, warning businesses that this possibility would cause a strong economical crisis with recession and loss of competition. currently under revision. New is the Directive on security of network and information systems (the NIS Directive 2016/1148 ). Full overview Europea Commission. 151 Directive 2013/36/EU on capital requirements 152 Financial regulation: European Commission presents a first comprehensive review of the EU's reform agenda European Commission, 15 May 2014. 153 Banking Union European Commission; Banking Union European Parliament; and proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on structural measures improving the resilience of EU credit institutions 10150/15 European Commission 19 June 2015
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Leavers argued the EU countries would not block the trade with the UK as it is their main export partner. Opposing also the value of UK exports to EU Members had been falling off slightly. Exports of goods and services were worth about £229 billion, down from £242 billion in UK export of goods and service to EU
2010, being the 44% of the total English exports. The Leave siders belived that the worldwide market should be prioritized, so being independent would give UK the power to negotiate the agreements
Source: UK Office of National Statistics
with other third countries that now
are exclusive competence of the European Commission. Indeed the Article 207 (TFEU) established the common commercial policy as an exclusive competence of the European Union. The Treaty of Lisbon in 2009 further extended the EU’s exclusive competences in international trade matters. The 2010 communication ‘Trade, Growth and World Affairs154’ made international trade one of the pillars of the new Europe 2020 strategy. The new strategy placed greater emphasis on the EU’s external economic relations and called for the WTO to be revitalised. However, the stalemate of the multilateral negotiations within the WTO on the Doha Development Agenda155, forced the EU to find alternative ways to guarantee better access to third countries’ markets. Starting a new generation of comprehensive Free Trade Agreements (FTAs), which go far beyond tariff cuts and trade in goods. This strategy was hardly criticized by the UK both for the size and complexity of the agreement, which prolonged the negotiations for years. Arguing than the EU is not concluding any FTAs expecially the main one TTIP and CETA with US and Canada. 154
The European Union And Its Trade Partners European Parliament October 2016 Since 2001 the WTO’s members have been engaged in a broad round of multilateral trade negotiations known as the Doha Round, or Doha Development Agenda (DDA) Like the previous rounds, it seeks to further liberalise trade. Negotiators are also charged with reviewing trade rules and adjusting them to the constantly evolving world trading system. Unfortunately, the talks have stalled over major issues. The most significant differences are between the often irreconcilable positions of major emerging countries and industrialised countries concerning the way the international trading system should be reshaped. The Doha talks have assigned an increasing role to developing countries as the weight of this group in the world trading system has grown enormously over the past decade. The European Union And The World Trade Organisation European Parliament October 2016. 155
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Contribution to the EU One
of
the
most
discussed
advertising of the Leave campaing was the bus of Boris Johnson, roaming around London with a big speech saying: ‘we send EU £350 million a week let’s fund our NHS instead’. The total 2015
Source Getty-Immage, Matt Cardy
contribution of UK was around £13 billion to the EU budget, and EU spending on the UK was £4.5 billion. So the UK’s ‘net contribution’ was estimated at about £8.5 billion156. The Boris bus was totally misleading, but it gives however the feeling of the popular complaints. The Leavers argued that the EU is taking more money than the one which invest in. Another rough calculation of the Leave Campaign said the UK was receiving only 50 pound for every 1 euro sent to the EU. Such calculation was did not take into account all the crossnational and local project
Balance of UK contribution to EU budget
that the EU puts in place, as well as the
cost
of
maintaining
the
bureocratic machine (which also involves British MEPs, officer and employee). “There is no definitive study of the economic impact of the UK’s EU membership or the costs
Source: House of Commons Library
and benefits of withdrawal”, as the House of Commons Library says157. This lack of knowledge played on the Brexiter side, who effectively said, enormous and misleading dato to support their claims. Not capable to answer with correct information the IN campaign argued that generally EU is funding UK with their projects, helping UK citizen and companies. Being in the European Union keeps the life-cost down was another common speech from the Remainers. For instance, flights were 40% cheaper inside the EU, roaming 156 157
The UK's EU membership fee, THE UK’S INDEPENDENT FACTCHECKING CHARITY, 25- February 2016. Brexit: some legal and constitutional issues and alternatives to EU membership, UK parliament, 28 July 2016.
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charges were going to be abolished, and health was free or cheap in other EU countries. However also argued that this system had to be reviewed, in orther to low the UK contribution.
Sovereignty At the heart of the entire debate ther was sovereignty issue, which basically touched all previous ones. Leavers especially argued that the EU was imposing harmonization and standardization without taking into account national specificities158. The principle of the adoption of harmonised legislations were established by the Article 114 TFEU159, which confered upon the EU the competence to enact 'measures for the approximation' (known also as 'harmonisation') of national rules regarding the establishment and functioning of the internal market. The CJEU specified (in the Tobacco Advertising case160) the Article 114 TFEU “could be used as a legal basis to enact EU legislation only if there is a genuine link between the adopted measure and the removal of existing obstacles in the internal market“. Therefore, it does not confer upon the EU a general competence to regulate any aspects of the functioning of the internal market161. However, the article 114TFEU, following this principle, allowed the EU Institutions to create legislations on product quality, health and safety, labour rights, which were valid across all Europe. Those in favour of the EU rules, argued this was about protecting consumers and workers against the excesses of private enterprise. However, most of business groups thought much of the laws were superfluous, expensive and burdensome, so it drived up prices, hinderd growth and job creation, and stifled innovation. 158
Example took by Boris Johnson on the banana case. The EU imposed to meet certain criteria for the bananas to be sold, including that they’re ‘free from bruises’, ‘free from any foreign smell’ and, crucially, ‘free from malformation or abnormal curvature of the fingers’. Boris hits back in Brussels banana row. But has he got his facts right this time? The Specatator 23 May 2016 159 It was added (as Article 100a EEC) by the Single European Act in 1986 in order to enable the EU legislature to complete the internalmarket using the procedure of qualified majority voting in the Council (the ordinary legislative procedure now applies). 160 Case C-376/98 Germany v Parliament and Council (known as Tobacco Advertising case). 161 Whenever a proposal is concerned with consumer protection (which is often the case), the EU legislature must seek a 'high level' of such protection. Measures adopted on the basis of Article 114 TFEU are done so using the ordinary legislative procedure, and the European Economic and Social Committee must be consulted. Moreover, the Article 114 TFEU does not apply to: fiscal provisions, provisions relating to the free movement of persons and provisions relating to the rights and interests of employed persons. EU competence in private law The Treaty framework for a European private law and challenges for coherence European Parliament January 2015
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Leave campaigns endorsed a critical view of the EU. It was seen as an undemocratic technocracy, which imposed laws on its Member States and depriving them of their sovereignty. Moreover, they argued that the EU Institutions were not capable to change and they were also asking for more integration (adding that at one point the UK should be obliged to adopt the euro, currently opted out 162). The UK domestic judiciarysystem was subordinate to an overarching European system of justice (where the EU Court of Justice could give interpretation of the European Law under the Article 19 TEU and Articles 251-TFEU163, the ECJ might overturn decisions of the UK court). Therefore Leavers suggested to leave the EU to hold again a complete sovereignty over the UK national decision-making process. Remain campaigners argued that ceding sovereignty was not such a bad thing. The EU decision making process was not undemocratic: (i) the MEPs were directly elected and (ii) the European Council was formed by Member State rappresentatives, the ones with decision-making power. (iii) Rules were negotiated within the Institutions, where UK was one of the main members. (iv) Most of the legislations for businesses were following the way already taken by the British ones. Summing up, losing sovereignty gave the UK free access to the Single Maket and the possibility to negotiate the EU laws. Instead Leaving the Union meaned that UK would still have to adhere to European law to trade in the EU market (as well as pay fees). Finally, the fact that the UK was having an in-out referendum on its membership of the EU showed that it retained on ultimate sovereignty on itself. However, renegotiation and reforms of the EU had been promoted by all parties and the UK had always tried to avoid further steps of integration.
Identity After the introduction of the European Citizenship in 1993, the European Institution started also a process of creation of a cultural integration of Europ, through transational initiatives (like Erasmus and Interail). That initiatives created, especialy in the young generation, a European identity, a sort of European 162 163
Competences of the Court of Justice of the European Union European Parliament ECJ has other competences under other Treaties, like: EURATOM or EFTA-EEA.
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Nationalism. This process found especialy in the British people (but also in France and Italy) strong intellectual oppositions. This instance was assimilated by the farright parties, driving the creation of National and Indipendent Parties. It seems minor issue, comparing to the others, but it played a fundamental role in the campaign. During an informal meeting164, Simon Byceson, former Deputy Secretary General of the British Liberal Party, anticipated that the Brexit referendum would be decided by a question of identity and emotion. At the time, he foresaw a possible victory of the YES based of emotional feelings. ”Forghet about the economic reasons, the referendum will be played on the emotion. The conservatives are not speaking about emotions but only about economy. Instead the leave campaign are using emotions to attract people to their cause” said Mr. Byceson. The ancient politician argued that the older and not educated people would be attracted by the Leave campaign, as well as soldier, policeman or other similar categories for him. The Remain campaign message was not alligned with voter priorities, avoiding the question of identity. Indeed only the young campaigners supported the EU identity resulting, a mere minority. The Leave campaigns instead delivered the clear message that UK citizens are not European.
164
Informal discussion over Brexit: Should I stay or should I go now? How organisations can scenario plan for Brexit, 09 March 2016 Harwood Levitt Consulting office in Brussels.
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The Main Issue of the Referendum Issue
Remain
Leave
Possibility for UK citizen to live work or study across the EU, having the same employment rights and guaranties. UK has kept control off its border and isn’t part of Schengen area. EU gives British police access to more intelligence and sharing efforts with other country policies. The Eu cooperation and European Arrest Warrant are examples.
Leaving the EU would give the border control back to Britain. Migration, expecially of poor worker has to been stop. 1.5 EU migrants came to the EU between 2004 and 2010, depriving UK citizens of jobs. Migration cause deficit in social housing. EU is not managing the migration crisis, so terroris are coming in UK.
EU is the biggest UK’trading parter and EU countries buy 44% of everything selled abroad, 3 milion jobs in Britain are linked to trade with Europe. The access to the EU gurantees access to the Single Market, which make easier and cheaper for UK companies to sell products.
Indipence will allow UK to make its free trade deals, currently the EU negotiation heve been suspended or are barely moving. The export with the rest of the world are gowing twice fast than the export with EU. Furthemore the trad agreement are not favourizig UK companies.
EU is funding UK with their projects, helping UK citizen and companies.
UE is keeping money form UK, which could be used to improve citizens’ life. Leaving will menas more money to invest in UK.
Sovregnity
Being part of the EU gives UK the possibility to negotiate the possible implication of EU law. Ceding sovregnity to the EU is also the price to pay to access the single market. Legislation are negotiated and so there is still a control on it. Leaving will means being subject to EU laws without possibility to negotiate it.
Leaving EU will give more control on the national law. Currently over 50% of UK legislation comes from the EU. Moreover, EU is not democratic, parliament has no power and the commission is not elected by the citizen. The legislation imposed are overhelming the decision of UK institution. Leave means take back control to the decision-making process.
Identity
Main Ramain Campaing evoided to speack about a European identity for the British people.
Campaign stongly based on the emotional feeling of English identity. British people do not belong to Europe.
Immigration from EU and Migrant Crisis
Economy Single Market and International Trade
Contribution to EU
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“The British people must now decide whether to stay in this reformed European Union or to leave” David Cameron, 19 February 2016
3. Negotiations ahead of the UK's EU referendum In the May 2015 general election the Conservative Party won the majority of seats in the House of Commons. The PM Cameron renewed their party manifesto165 commitments to hold an In-Out referendum on the UK membership of the EU by the end of 2017, but only after "having negotiating a new settlement for Britain in the EU". Indeed, the UK Prime Minister, David Cameron, ahead of the European Council meeting of 25-26 June 2015, spoke for the first time with the Council President Donald Tusk166 about a reform of the UK membership status. A second bilateral meeting of EU leaders followed on 23 September 2015 aside the discussion over crisis, migration and refugees. On the 15 October 2015 European Council was informed about the process ahead concerning the UK plans for an (in/out) referendum. Prime Minister Cameron indicated he would have set-out the UK's specific concerns early November. The European Council decided to revert to the matter in December.167 During that meeting, Tusk addressed a letter168 to the European Council on the issue saying "All in all it is my assessment that so far we have made good progress. We need some more time to sort out the precise drafting on all of these issues, including the exact legal form the final deal will take. We also have to overcome the substantial political differences that we still have on the issue of social benefits and free movement." He highlighted also that a new proposal would have been adopted in February, touching four areas (Economic Governance, Competitiveness,
165
Conservatives manifesto for the 2015 election. European Council meeting, 25-26 June 2015. 167 European Council, 15 October 2015. 168 Letter by President Donald Tusk to the European Council on UK membership of the European Union, 7 December 2015. 166
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Sovereignty and Immigration) as required by Cameron.169 The European Council debated the UK plans for the in/out referendum and agreed to find solutions in all the four areas170. Tusk worked closely with Cameron, meeting him on 31 January 2016, to finalise the proposal. The draft was presented on 2 February 2016171, followed by intensive discussion with the permanent representatives of all 28 member states172, European Parliament representatives173and major European leader174 tring to secure a broad political support for it. The efforts found a praise on the European Council of 18 and 19 February175. EU leaders achieved a deal which strengthens Britain's special status in the EU: Economic Governance, the Members of the Eurozone oblige themselves to taking into account the UK voice (on the behalf of the European Council) when they would have to decide the monetary policy, trying so to not interfere with the UK one. The same provision would apply to the financial system, to ensure the level-playing field within the internal market. Remarking the special status of UK, which was not (and will not be) obliged to join Euro or ESCB. Competitiviness, EU institutions and the Member States will take concrete steps towards better regulation176 approach. Thus, they committed to low administrative burdens and compliance costs on economic operators, especially small and medium enterprises, and repealing unnecessary legislations. So concentrating the efforts on regulatory Fitness and Performance Programme (REFIT). Morover a strong commitment to carry on the negotiations for the FreeTrade Agreements, which involved: the US, Canada, Japan and Latin America, 169
EU reform: UK Prime Minister's letter to President of the European Council, 10 November 2015 Conclusions on UK - European Council (17 December 2015), European Council, 17-18 December 2015. 171 Letter by President Tusk to the Members of the European Council on his proposal for a new settlement for the United Kingdom within the European Union, Draft decision of the Heads of State or Government, meeting within the European Council, concerning a new settlement for the United Kingdom within the European Union. 172 On 5 and 11 February. 173 President Tusk´s negotiating team met also the, Guy Verhofstadt, Elmar Brok and Roberto Gualtieri on 8 and 12 February, President Donald Tusk also spoke with President Schulz on 10 February and met the three representatives on 12 February. 174 On 12 February, President Tusk has been meeting several other EU leaders: The Prime Minister of Belgium, President Hollande, Chancellor Merkel, the Prime Minister of Greece, the President of Romania and the Czech Prime Minister, who holds the presidency of the Visegrad Group (comprised of the Czech Republic, Hungary, Poland and Slovakia). Remarks by President Donald Tusk after his meeting in Bucharest with President Klaus Iohannis of Romania, Remarks by President Donald Tusk after his meeting in Athens with Prime Minister Alexis Tsipras, Remarks by President Donald Tusk after his meeting in Prague with Prime Minister Bohuslav Sobotka. 175 European Council, 18-19 February 2016, European Council conclusions, 18-19 February 2016. 176 2015 Better Regulation Agenda, the European Parliament, the Council and the Commission have agreed the Interinstitutional Agreement on Better Law Making. 170
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notably Mercosur, and the Asia-Pacific region. Sovereignty, it was recognised that the United Kingdom, in the light of its specific situation under the Treaties, was not committed to further political integration into the European Union. The substance of this would have been incorporated into the Treaties, making clear that the references to an ever closer union do not apply to the UK. Moreover, claryfing the references in the Treaties and their preambles to the process of creating an ever closer union among the people of Europe did not offer a legal basis for extending the scope of any provision of the Treaties or of EU secondary legislation to UK. Possibility to have special provision in the area of freedom, security and justice are also included. To reach this scope: The Commission comitted to establish a mechanism to review the body of existing EU legislation for its compliance with the principle of subsidiarity and proportionality. It would implement the existing processes with the aim to ensure the full implementation of this principle. Social benefits and free movement of people. Remarking that free movement of workers within the Union is an integral part of the internal market, the agreement entitled UK to put in place measures limiting flows of workers, when the situation could have negative effects both for the Member States of origin and for the Member States of destination. The European Commission committed to table a proposal amending the Regulation 492/2011 on freedom of movement for workers within the Union, this wold provide a safeguard mechanism with the understanding that it could and would be used a solution to the United Kingdom's concerns about the exceptional inflow of workers from elsewhere in the European Union.177. The Commission would also clarify (by guidelines) that Member States might take into account past conduct of an individual in the determination of whether a Union citizen's conduct poses a "present" threat to public policy or security. The agreement was a legally binding and irreversible for all 28 leaders, with a clear commitment to incorporate it into the Treaties, at the time of their next 177
Helm, Toby (24 July 2016). "Brexit: EU considers migration 'emergency brake' for UK for up to seven years". The Guardian. London, UK. Retrieved 24 July 2016.
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revision178after the referendum. The negotiation showed the clear intent to maintain UK inside the European Union. All the European leaders were concerned about Cameron’s decision to hold a referendum179 even itaware of the risk carried by Brexit. However they decided to give the UK some concessions: (i) more flessibility on the migration issue and more possibility to influence the decision regarding policies of (ii) Euro currency and (iii) Financial system and (iv) the commitment for less policy invasion (through a better regulation) made by the European Commission. This comittments were not big as Cameron and the Leave Campaigner expected, but it could not be bigger, due to not raise rivendications from other countries, like Hungary or Austria (expecially on migration)
178
This new status of the UK is now invalid, due to the referendum outcome. After the results, President Tusk, President Juncker, President Schulz and Netherlands Prime Minister Rutte stated jointly178: "In a free and democratic process, the British people have expressed their wish to leave the European Union. We regret this decision but respect it," underling that: "As agreed, the 'New Settlement for the United Kingdom within the European Union', reached at the European Council on 18-19 February 2016, will now not take effect and ceases to exist. There will be no renegotiation". 179 Which was instead praised by the big eurosheptic parties, like Front National (FR), 5 Star Movement and Lega Nord (Italy), Fidesz party (HG) and FPÖ (AUT).
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“Get that lie off your bus!” (Urging Vote Leave to remove the £350million figure from its battle bus) Angela Eagle, 9 June 2016
4. Overviews of the campaigns The campaing for the referendum was one of the most discussed of the last decade, not only in UK, but in all Europe and across the Atlantic. In a campaign full of lies and misleading data, it was difficult for the normal people to understeand who was telling the truth, especially because most of the times it was between the two positions. The decision over wich party support, was also influenced in the different positions of the parties and strategies used for the campaign.
The political party positions All the political party, except the Scottish national party (and so far the Scottish government), supported holding the referendum. Analyzing the three main parties, only the Conservatives wanted a referendum in any case, instead Lib Dem and Socialist supported the referendum only in case of further changes in the agreement with the European Union, so basing the referendum more on it than in the general position or the EU. However, the Lib Dem decided to support the Conservatives idea, concluding the alliance for the 2015 general election. Immediately after the decision of Cameron to hold the referendum the 23 of June, political paties started to move and play their strategies. Conservatives: different positions crossed the Tories, so Cameron decided to let each single member decide which side support, so he declared the neutrality of the party. Aware that probably some members would have campaigned to Leave, he was confident that the mayority of the party would have followed his position, and so the Government one, to Remain. Cameron, after two won referendums, maybe was too self confident and did not expected Boris Johnson to campaign
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against him. Liberal Democrats: the other member of the Government coalition was clearly in favour of the Remain Vote. Labour Party: the main party of the opposition declared its support to remain vote. Inside the However inside both of the parties there was an internal minority which supported the exit180. As we can see from the chart pie below, the majority of the parties represented in the UK parliament endorsed the Remain position, considering also that even if the Conservatives was neutral, the Government has given a clear indication to vote remain. Party
Position
Seats
Conservative
Neutrality
329
Labour
Remain
230
Scottish National Party
Remain
54
Liberal Democrat
Remain
8
Sinn Fein
Remain
4
Plaid Cymru
Remain
3
Remain
3
Remain
2
Green Party
Remain
1
UK Independence Party
Leave
1
Democratic Party Vacant
Leave
8
no data
2
Speaker
no data
1
Independent
no data
4
Social Democratic Labour Party Ulster Unionist Party
&
Unionist
Total number of seats
650181
180 181
Current State of the Parties, UK Parliament.
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Overview of all the political party position Political Parties
Referendum Position
Alliance Party
Hold it
Green Party
Hold it
Labour Party
Hold it, only in case of transfer of powers to the EU
Liberal Democrats
Hold it, only after modification of the EU treaty
Plaid Cymru
Hold it
Scottish National Party (SNP)
Not to hold it
Sinn Féin
Hold it
Social Democratic and Labour Party (SDLP)
Hold it
Ulster Unionist Party (UUP)
Hold it
Democratic Unionist Party (DUP)
Hold it
People Before Profit Alliance (PBPA)
Hold it
Traditional Unionist Voice (TUV)
Hold it
UK Independence Party (UKIP)
Hold it
Conservative Party
Hold it
Exit Position
Remain
Leave
Neutral182
Minor parties and parties All the minor parties supported holding a referendum. Britain First,183 the British National Party (BNP)184, Éirígí,185 Respect Party,186 Trade Unionist and Socialist Coalition (TUSC),187 SDP188, Liberal Party, and Independence from Europe189 supported leaving the EU. The Scottish Socialist Party (SSP) supported the Remain.190 The Women's Equality Party (WE) had no official position on it.191192 Government positions UK Governement
Hold it
Scottland Government
Not to hold it
Northern Ireland Government
Hold it
Walles Governement
Hold it
Remain
182
Officilly neutral, possibility for the single member to decide which side support. "Britain First Policies". Britainfirst.org. Retrieved 27 May 2016. "Foreign Affairs | British National Party". bnp.org.uk. Retrieved 25 June 2016. 185 "Éirígí backs Brexit with Northern Ireland poster campaign". The Irish Times. 186 "Respect to campaign to leave the EU". respectparty.org. 22 February 2016. 187 Trade Unionist & Socialist Coalition (22 February 2016). "TUSC letter in The Guardian – now sign the petition". tusc.org.uk. 188 "EU referendum: 10 alternatives to the official Leave and Remain campaigns". BBC News. Retrieved 27 April 2016. 189 Mike Nattrass MEP FRICS (19 April 2014). An independence from Europe YouTube. Mike Nattrass via YouTube. 190 Cullen, Hugh. "The Socialist Case Against Leaving the European Union". Scottish Socialist Party. 191 "WE propose a Women's Bill of Rights". womensequality.org.uk. 8 March 2016. 192 Mayer, Catherine (8 March 2016). "Whether we leave or stay in the EU, a Women's Bill of Rights is long overdue". The Huffington Post. AOL. Retrieved 27 May 2016. 183 184
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Overview of the campaings Looking also at the position of all parties, most of them, and especially the big one, were supporting the Remain as the local Governments. The establishment mainstreamed position was clearly in favour of Remain. All the big parties created campaigns to sustain it. However the exit polls were not clear alternating the two possibilities, withoutgiving a real indication193. Thus, undecided people would have played a decisive role in the final result.
To convincing them, the campaigners spent great efforts. The two sides adopted different styles. Analysing the registerd campaign194 we discover that there is a substiantial balance in the number: 63 supporting Remain and 60 supporting Leave195. However, looking at the most influential campaings196 we discover that the influential Remain Campaign are 43 compared with the only 8 of the leave side. Having the Electoral Commission selected The In Campaign Ltd and Vote Leave Ltd as lead campaigners. The first was leaded by Cameron and the second by and anti-europeistic and out-siders Johnson, so again a Tories internal fight. The Leavers, more coordinated, carried also the same strong message: leave the EU will help the UK to take back the control of border, economy and legislation. 193
Pollsters now know why they were wrong about Brexit, 24 June 2016, Business Insider UK; What we can learn from the referendum polling, 19 June 2016, UK Polling Report 194 Not counting the informal one. 195 Criteria and Selection are fully summed up in the EU referendum Report pg 94-95, the Electoral Commission September 2016. 196 Campaigning in the United Kingdom European Union membership referendum, 2016 Wikipedia
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This difference was based, in particular, on the choice of campaign alone made by the Cameron, the Lib Dem and the Labourist. This decision to avoid coordination finds its roots on barely political ambitions on the next general elections. Indeed, the messages were different, from the strong pro-european labourist to the light-eurosceptic conservatives. A costellation of small crossparties campaign were held but without funds they played a marginal role. Furthermore, all campaigns pushed on the necessity to reform the European Union. None of the big parties supported the status quo of the UK membership. The fracture inside the Government party was evident. The two official campaigns were organised by the Conservatives, Cameron supporting the Remain and Johnson the Leave. But it is also interesting to note that, within the Leave campaigns there was also one held by the Lib-Dem and another by the Labourist. This clearly shows the fracture among that parties. A mirror of this can be also seen in the attitude of the two sides. Cameron, Clegg197 and Corbyn198 tried to maintain a formal behaviour, avoiding to use populist slogan, but betting more on the new possible agreement with the EU. Instead Farage and Johnson, as they were used before, played this game on the emotional side. Their behaviour was really arrogant during the campaing and expecially Farage attacked personaly the leaders of the UK and the EU establishments. This contrapposition highlights the referendum campaign was not played only on the EU membership, but also on the UK establishment consensus. On the European side the President of the Commission Jean Claude Junker decided to stay out of the campaign, as all the establishment of Brussels. A political choice, motivated with the joke: “because the European Commission is even more disliked in Britain than in Germany” told by Juncker to jounalists during a conference in Germany on the 12th June199. A deeper reason was to avoid such involvement, which in case Leave won, could have inevitably ended also the Juncker precidency, as did with Cameron. Regrettable or not, the absence of the
197 198 199
Nick Clegg leader of the Liberal Democratic Party (substituted by Tim Farron in July). Jeremy Corbyn leader of the Labour Party (confirmed in September 2016). Juncker: Brexit a ‘catastrophe’ but I won’t campaign in UK, Politico 12 May 2016.
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European Institutions deprived the UK citizens of a source of information, allowing the Leave campaign to keep providing misleading data. Furthermore, treating Brexit as a British problem, remarked again the distance between the EU and the UK. Register of Participants in the EU Referendum LEAVE CAMPAINGS NR
Regulated Entity Name
EntityStatusName
1
Campaign for an Independent England Ltd
Company
2
Democracy Movement
Company
3
English Lobby
Company
4
Global Britain Limited
Company
5
GO Movement Ltd
Company
6
Grassroots Out Ltd
Company
7
Imaginexit Limited
Company
8
JD Wetherspoon PLC
Company
9
Labour Leave Limited
Company
10
Leave.EU Group Ltd
Company
11
Muslims for GB Limited - Muslims for Britain
Company
12
News Group Newspapers Ltd - The Sun
Company
13
Scientists for Britain Limited
Company
14
The Bruges Group
Company
15
The Campaign For An Independent Britain Limited
Company
16
THE EU REFERENDUM CAMPAIGN LIMITED
Company
17
The Freedom Association Limited
Company
18
The Leave Alliance Ltd
Company
19
Vote Leave Limited
Company
20
WAGTV Limited
Company
21
Dr Richard North
Individual
22
Mr Arron Banks
Individual
23
Mr Darren Grimes
Individual
24
Mr John Poynton
Individual
25
Mr john stanyer
Individual
26
Mr John Sweeney
Individual
27
Mr Martin Banbury
Individual
28
Mr Michael Pye
Individual
29
Mr Peter Harris
Individual
30
Mr Philip Lenton
Individual
31
Mr Zaccheus Gilpin
Individual
32
Mrs Emmie Sweet
Individual
33
Children of the Atom
Registered Political Party
34
Democratic Unionist Party - D.U.P.
Registered Political Party
35
English Democrats
Registered Political Party
36
English National Party
Registered Political Party
62
37
Newcastle upon Tyne Community First Party
Registered Political Party
38
Social Democratic Party
Registered Political Party
39
Trade Unionist and Socialist Coalition
Registered Political Party
40
Traditional Unionist Voice - TUV
Registered Political Party
41
UK Independence Party (UKIP)
Registered Political Party
42
National Union of Rail, Maritime and Transport Workers
Trade Union
43
Workers of England Union
Trade Union
44
Brexit Express
Unincorporated Association
45
Campaign Against Euro-Federalism
Unincorporated Association
46
Connolly Association
Unincorporated Association
47
Conservative Grassroots
Unincorporated Association
48
Democrat Publications
Unincorporated Association
49
Economists for Brexit
Unincorporated Association
50
FAB says Leave
Unincorporated Association
51
Fishing For Leave
Unincorporated Association
52
Global Markets Free Nations
Unincorporated Association
53
Green-Leaves
Unincorporated Association
54
Left Leave
Unincorporated Association
55
Midwest Group
Unincorporated Association
56
The Bow Group
Unincorporated Association
57
Trade Unionists Against The European Union
Unincorporated Association
58
Vapers for Britain
Unincorporated Association
59
Veterans for Britain
Unincorporated Association
60
Women for Britain
Unincorporated Association
REMAIN CAMPAIGNS 1
City of London Corporation
Body incorporated by Royal Charter
2
Clientearth
Charitable incorporated organisation
3
Federal Trust for Education and Research
Charitable incorporated organisation
4
Social Market Foundation
Charitable incorporated organisation
5
Adecco (UK) Limited
Company
6
Avaaz Campaigns UK
Company
7
Best For Our Future Ltd
Company
8
Conservatives IN Ltd
Company
9
DDB UK Limited
Company
10
East Midlands Training Limited
Company
11
European Movement of the UK Ltd
Company
12
Friends of the Earth Trust
Company
13
Global Justice Now
Company
14
Lebara Ltd
Company
15
London First
Company
16
Michelle Ovens Ltd
Company
17
New Europeans Association Ltd
Company
18
Progress Limited
Company
19
Proud Robinson Ltd - The In Crowd
Company
20
Referendum Facts Ltd
Company
21
Scientists for EU Limited
Company
63
23
SCOR UK Company Limited - French Industrialists for Remain Stronger United Ltd
24
The In Campaign Ltd
Company
25
The ResPublica Trust
Company
26
Third Generation Environmentalism Ltd
Company
27
UK Indians for Remaining in Europe Ltd
Company
28
Universities UK - Universities for Europe
Company
29
Virgin Management Limited
Company
30
Patrick Evershed
Individual
31
Priscilla Nwikpo
Individual
32
Mr Edward Izzard
Individual
33
Mr Matthew Jones
Individual
34
Mr Robert Laurence Taylor
Individual
35
Mr Wolfgang Tillmans
Individual
36
Mrs Katie Pruszynski
Individual
37
Green Party
Registered Political Party
38
Labour Party
Registered Political Party
39
Liberal Democrats
Registered Political Party
40
Plaid Cymru - The Party of Wales
Registered Political Party
41
Scottish Green Party
Registered Political Party
42
Scottish National Party (SNP)
Registered Political Party
43
SDLP (Social Democratic & Labour Party)
Registered Political Party
44
The Republican Socialist Party
Registered Political Party
45
Communication Workers Union
Trade Union
46
Community
Trade Union
47
GMB
Trade Union
48
The Fire Brigades Union
Trade Union
49
Trade Union
51
UCATT Union of Shop, Distributive and Allied Workers (USDAW) Unison - The Public Service Union
52
Unite the Union
Trade Union
53
Another Europe Is Possible
Unincorporated Association
54
Cambridge for Europe
Unincorporated Association
55
Conservative Group for Europe
Unincorporated Association
56
Economists For Remain
Unincorporated Association
57
Labour Movement for Europe
Unincorporated Association
58
Lawyers - In For Britain
Unincorporated Association
59
Unincorporated Association
61
National Farmers' Union The Scottish Council of the European Movement European Movement in Scotland Trades Union Congress (TUC)
62
Wake Up And Vote
Unincorporated Association
63
We Are Europe
Unincorporated Association
22
50
60
64
Company Company
Trade Union Trade Union
Unincorporated Association Unincorporated Association
Funds of the campaign The efforts spent on the campaigns can be also measured on the economical side. As indicated in the Referendum Agreement, registered campaigns have to respect limits of budget, while indipendent campaigners who intended to spend more than £10,000 were required to register with Electoral Commission. The requirement to register also applied to registered political parties. Once registered, campaigners were entitled to have (i) a spending limit of up to £700,000, (ii) access to the electoral register to help them campaign;. (iii) appointment of the representatives to attend postal vote opening sessions, polling stations and the counting of the votes. Registered campaigners were required to comply with the rules on spending, donations and loans before and after the referendum. Once registered, campaigners were also able to apply to us to be designated as the lead campaigner for the outcome they supported. REMAIN
Dettail of the resources of the Referendum Campaings
LEAVE
38% 62%
Donations
Loans
Total
REMAIN
14,867,376
83,940
14,951,316
LEAVE
18,158,510
6,000,000
24,158,510
Total
33,025,885
6,083,940
39,109,825
Donations and loans reported by campaigners at the EU referendum, UK Elettoral Commission.
The total amount of funds spent for the two campaigns was 39,109,823 during the statutory pre-poll reporting periods:
A total of £33,025,885 in donations was reported by campaigners in their prepoll reports; £14,867,376 from ‘Remain’ campaigners and £18,158,510 from ‘Leave’ campaigners.
A total of £6,083,940 in loans was reported by campaigners in their pre-poll reports; £83,940 from ‘Remain’ campaigners and £6m from ‘Leavers.200
200
After the referendum, registered campaigners are required to submit a campaign spending return which includes details of all accepted donations and loans over £7,500 together with details of certain impermissible donations and loans. In addition,
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The outcome of this analysis on the registered campaigns highlighted that the Leave campaigns were able to spend the 24% more than the Remain ones. A data which clearly shows the different efforts of the two campaigns. The route towords the UK referendum on the EU membership May 2013
the Conservative Party published a draft EU Referendum Bill
July 2013
The Bill received passed the first reading in the House of Common
December 2013
House of Lords adopted the Bill in the first reading
October 2014
Passed to the Public Bills Committee, the Bill was unable to progress further before the Dissolution of Parliament on 27 March 2015.
February 2015
Cameron commitments to hold a referendum before the 2017 if he had won the election
May 2015
General election the Conservative Party won the majority of seats in the House of Commons
May 2015
The commitment for a referendum was included in the Queen's Speech
June 2015
On the bill's second reading on 9 June, members of the House of Commons voted by 544 to 53 in favour of it,
October 2015
European Council was informed about the process ahead concerning the UK plans for an (in/out) referendum. Tusk started the negotiation for a new deal with the EU
February 2016
Draft proposal of the new deal with the EU was adopted by the European Council, the campaign informally started
23 June 2016
Rerendum on the EU membership
they must report the total value of accepted donations and loans that were worth more than £500 and less than or equal to £7,500. The post-referendum returns are due to be submitted by 23 September 2016 for campaigners who have spent £250,000 or less and 23 December 2016 for those that have spent over £250,000. We will publish these returns as soon as reasonably practicable after the deadline. The Electoral Commission will issue a further report in spring 2017 focusing on campaign spending and donation returns. The report will also include information on the use of our investigatory and sanctioning powers at the referendum. EU referendum Report pg 96-97, the Electoral Commission September 2016.
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Chapter III – The day after 1. The result of the referendum 2. The european reaction to Brexit 3. A sociological explanation to Brexit
Introduction I remember the 24 June as yesterday. Waking up and going to my office as every morning. Everything normal, a normal day in Brussels. Except for this little difference, the UK voted Leave. I remember the discussion with my French colleagues, arguing that the referendum was not binding and the majority too small to take it seriously. But what I remember most are the tears of my British friends and the heartbreaking cry of a girl during a conference at the European Commission. A feeling difficult to describe with words, something in between a deep sorrow, like when a friend goes away, and a fear for the future, like all your certainties vanished. I felt lost looking at the pictures and videos of Farage and Johnson toasting with a beer (probably Belgian) and partying for the result. I wanted to share this memory before continuing to analyse the outcome of the referendum and the reaction of the politicians across Europe. Because in the end, the referendum was this. I saw a divided nation, people crying and smiling at the same time in the same city, district, family; people thinking they have gained freedom while others lost it.
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“During the referendum I said I wanted my country back… now I want my life back.” Nigel Farage, 24 June 2016
1. The result of the referendum After a long post-vote night, the prediction of the exit pool found confirmation from the word of Jenny Watson, Chief Counting Officer (CCO) and Chair of the Electoral Commission, speaking at the Manchester Town Hall. On Friday 24 June 2016 the final result of the referendum was clear: UK population voted to leave the European Union. The mayority of 51.9 % over the 72% of the eligible voters backed the exit.
Source: BBC, EU referendum results
The difference was not really big, but enough to give a clear outcome of the referendum. Over 33 million people voted, with 17 million backing Leave (51.9 per cent) compared to 16 million voting to Remain (48.1 per cent). The Leave campaign then won by just 3.8%201
The second higher participation ever The referendum registered the second highest voter turnouts in recent years, the 72% was higher than any general election since 1997. Higher than the 1975 referendum, when the UK last voted on Europe with over 67% of voters backing 201
EU referendum result – UK Electoral commission
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membership of the EEC. The only referendum that involved more eligible voters was the 2014 Scottish independence referendum with 84.59 % of the tourn out. Despite the long run-up to the EU referendum, most people said they only made their decision a month before the 23 June vote. 18% of those who voted to Remain, said they had made their decision just a few days before.
Reasons to leave, reasons to remain Leave voters (49%) said the biggest single reason for wanting to leave the EU was “the principle that decisions about the UK should be taken in the UK”. One third (33%) said the main reason was that leaving “offered the best chance for the UK to regain control over immigration and its own borders.” Over one in eight (13%) said remaining would mean having no choice “about how the EU expanded its membership or its powers in the years ahead.” Only just over one in twenty (6%) said their main reason was that “when it comes to trade and the economy, the UK would benefit more from being outside the EU than from being part of it.”
Source: BBC, EU referendum results
For remain voters, the single most important reason for their decision was that “the risks of voting to leave the EU looked too great when it came to things like the economy, jobs and prices” (43%). Over three in ten (31%) reasoned that remaining would mean the UK having “the best of both worlds”, having access to the EU single market without Schengen or the euro. Just under one in five (17%)
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said their main reason was that the UK would “become more isolated from its friends and neighbours”, and fewer than one in ten (9%) said it was “a strong attachment to the EU and its shared history, culture and traditions.”202
Splits along geographic lines In the 1975 referendum, all four nations of the UK voted to stay. This time Scotland (67 per cent) and Northern Ireland (63 per cent) voted to Remain, instead Wales (53 per cent) and England (53 per cent) backed Brexit. These data highlight clearly the differences beween the member states of the United Kingdom.
Source: BBC, EU referendum results
The Scottish independence Scotland was the country with the major support to the Remain. No surprise for this, all the main party of the nation were supporting the NO campaign. This opened an issue on the permanence of Scotland inside the UK. One of the clauses of the new Bill with the British Government, which drove the voters to agree to remain in the UK, was indeed the permanence inside the European Union. Thus, the leave vote created a breach on the agreement, opening to a new referendum for 202
According to a survey carried out by British Conservative Pollster Lord Ashcroft - of 12,369 people on the day of the referendum EU Referendum ‘How Did You Vote’ Poll, Lord Ashcroft June 2016
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the Scottish indipendence. Not a remote possibility, on 2 September 2016 the First Minister Nicola Sturgeon, after various warnings, launched a commitment for another Scottish independence referendum. The SNP leader said the UK that existed before 23 June, had "fundamentally changed". She also announced a threemonth "listening exercise" to understeand what Scottish people feel about Europe, Brexit and independence, with a dedicated website and SNP members "hitting the doorsteps" to canvas views.203 The referendum outcome highlighted that Scotland and Norhtern Ireland voted to remain inside the European union, while Britain and Wales not. Both the Prime Ministers of Scotland and Northern Ireland are discussing the possibility for a referendum of independence, to remain inside EU.
The Northern Ireland independence Norhtern Ireland has a problem of border and security. Being the only State of the UK to have a territorial border with the EU, the possibility to restore the border controls between north and south (the Irish Republic) is worring the Irish Government. Not only for economic reasons, has the region had a turbulent history. The fight between Catholic and Anglicans is still strong in the inhabitants’ minds. Brexit will break the Good Friday Agreement of 1998204, the agreement promoted by the UE, whick has kept peace for 20 years, risking to create again the chaos in the region. For this reason, Deputy First Minister Martin McGuinness, from Sinn Féin205 which has 28 / 108 in the Northern Ireland Assembly and 4 / 18 in the House of Commons (being also present in the republic of Ireland), said the whole island of Ireland should be able to vote for a reunification. "The British Government now has no democratic mandate to represent the views of the North in any future 203
What does second independence referendum bill mean for Scotland ? 20 September 2016 The Good Friday Agreement brought to an end the 30 years of sectarian conflict in Northern Ireland known as 'The Troubles'. It was ratified in a referendum in May 1998. The agreement set up a power-sharing assembly to govern Northern Ireland by cross-community consent. The deal proved difficult to implement and was amended by the St Andrew's Agreement in 2006. Good Friday Agreement - 10 April 1998 205 Sinn Féin is the oldest political movement in Ireland. It takes its name from the Irish Gaelic expression for ``We Ourselves''. Since being founded in 1905, Irish Republicans have worked for the right of Irish people as a whole to attain national self-determination. Sinn Féin web site http://www.sinnfein.org/ 204
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negotiations with the European Union and I do believe that there is a democratic imperative for a 'border poll' to be held," McGuinness told national Irish broadcaster RTE, commenting the results of the referendum: “The British Government now need to take account of that and recognise that reality and allow the people of the north to have their say on their own future. Dragging us out of Europe will be to the detriment of all our citizens and will be bad for business, trade, investment, and wider society”206. Northern Ireland already held a referendum to leave the UK and join the Republic of Ireland in 1973, but a plebiscite of 98.8 decided to remain inside the UK. However, the circumstances
Northern Ireland sovereignty
are changed. North of Ireland has
referendum, 1973 Choice
Votes
%
Do you want Northern Ireland to remain part of the United Kingdom?
591,820
98.9
Do you want Northern Ireland to be joined with the Republic of Ireland outside the United Kingdom?
6,423
1.1
Valid votes
598,283
99.01
leave the UK would be the same as
Invalid or blank votes
5,973
0.99
the one for Scotland. However, in
Total votes
604,256
100.00
Registered voters and turnout
1,030,084
58.66
two possibilities after leaving UK. A full independence like the Scottish plan or a unification with the Republic of Ireland. The condition for Northern Ireland to
case
of
unification,
Northern
Source: Northern Ireland electoral commossion
Ireland will follow the 1990 example of the unification of the two Germany207. Entering in the domain of Ireland, the Northern Ireland would share the Irish seats at the UN, NATO, EU and other international organizations. Continuing also to be a part of the old treaty signed prior to the moment of reunification. After a period of transition, in which the new settlements will be discussed, probably giving a high autonomy to Northern Ireland, the new state will have the same provision on all its territory. The main Sinn Féin to ‘intensify’ demand for united Ireland vote following Brexit, The Irish Times Fri, Jun 24, 2016, 06:45 207 Federal Republic of Germany inherited the old West Germany's seats at the UN, NATO, the European Communities and other international organizations. It also continued to be a party to all the treaties the old West Germany signed prior to the moment of reunification. The same Basic Law and the same laws that were in force in the Federal Republic continued automatically in force, but now applied to the expanded territory. Also, the same President, Chancellor (Prime Minister) and Government of the Federal Republic remained in office, but their jurisdiction now included the newly acquired territory of the former East Germany 206
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problem would be the Euro currency. Northern Ireland currently is using the UK pound and the immediate transition to euro would create a shock, even if (thanks to the territorial community) in Northern Ireland the euro is normally accepted and used as currency almost the same as Pound.
Demographic differences Not only there were big differences between the nations that make up the UK, there were also clear differences along demographic lines.
Three quarters of 18-24 year olds (73%) voted to Remain. Older voters, instead, largely voted to Leave, including 60 % of people over the 65 years.
Differences also emerged between the employed and unemployed, with the majority of people in full or part-time work voting to Remain. Those not working, or on pension voted primarily for Leave.
The majority of people with a formal education voted to remain In: the 81% of people currently in full-time education voted to Remain, together with the 57% of those with a university education and 65 % of those with a higher education degree.
Those who finished their education at secondary school level or earlier generally voted to Leave. People from ethnic backgrounds, with the majority of white voters (53%) backed Leave, while two thirds of people who described themselves as Asian voted to stay, along with 73 % of black voters. 70 % of Muslim voters backed Remain.
The differences by Political Parties The Remain camp was banking on the support of at least 70% of Labour voters, if not closer to 75-80%. However, only 63% of Labour voters wanted to stay in. The LibDems were more coherent maintaining the backed 70%. Tories were more pro-Brexit and only 42% Remain. The 96% of the UKIP grassroots voted to Leave208. 208
EU Referendum ‘How Did You Vote’ Poll, Lord Ashcroft June 2016
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Source: Ashcroft polls
Cultural divide Those voters who backed staying in the EU tended to be socially liberal (60%), believed in feminism (62 %), and saw multiculturalism (71 %), immigration (79%) and globalisation (62%) as 'forces for good'. Those backing Leave believed the following were 'forces for ill': social liberalism (74%), feminism (74%), multiculturalism (81%), and globalisation (69%). 209
Final Analysis These differences between the two sides were remarkable, giving different perceptions on the main issues of the referendum:
Identity or nationalism was the key used by the Leave Campaign. The UK patriotic sence was instead less felt in countries with more independence, like Scotland and Northern Ireland, and through the young and educated people. In particular, the under 30 generations, (so called Erasmus generations), experienced more the European Union as a nation. Passing time abroad, thanks to the exchange programs, grew their European identity. A new patriotic feeling was radicated in the young generations, which experienced, only case in history, the feeling of belonging to a state that does not exist formally.
Economy – Trade: young people of the big cities were generally working as white collar, in the financial or service sectors. Having a more globalised
209
EU Referendum ‘How Did You Vote’ Poll, Lord Ashcroft June 2016
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vision of the economy and making their businesses transnational. On the opposite side, old people and people from the villages or small cities were hit strongly by the economical crisis. Industrial workers lost their jobs and farmers were struggling to survive. With a local-based economy, villages had more difficulty recovering themselves, leaving people unsatisfied. These people blamed the European Union for the crisis (even if they took subsidies from the EU).
Immigration was a major issue discussed in the referendum campaign. The big cities have generally voted to Remain, except for the suburbs, where the concentration of foreigners is higher. The countryside voted to leave, even if in the villages the percentage of people coming from other countries is close to zero. The fear factor played indeed a great role on this issue more than the others.
Contribution to EU and Sovereignty (capacity to self rule) did not play a great role on people’s decision. They were linked to the other three issues. Thus, the possibility to keep the money belonging to the EU budget, was related to the economical recovery. While the Sovereignty with the capacity to make own trade and stop the migration.
The hide of the referendum leaders After the vote the main leaders of the campaigns hid, leaving the UK in a bigger incertitude than before. The first was David Cameron, on the 24th of June, just the day following the vote, he resigned as prime minister, after 6 years. The prime minister, who backed the Remain vote, said Britain required "fresh leadership" to negotiate the country's exit from the EU. Mr Cameron, flanked by his wife Samantha, declared outside nr 10 of Downing Street "I do not think it would be right for me to be the captain that steers our country to its next destination 210". He promised to "steady the ship" over the coming months before stepping down in favour of a new Government which will have to carry on the citizen’s mandate: 210
David Cameron's full resignation speech: 'I'll go before the autumn' – video – Guradian 24 June 2016
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"The will of the British people is an instruction that must be delivered. More recently, the 12th of September, he also decided to step down form the MP position so not to be an obstacle to the new government. Cameron said he would have found it “very difficult if not impossible” to carry out his work as an MP without being an “enormous distraction and diversion” from the work of the Government.211 According to the media, the candidate favourite to replace David Cameron as PM was Boris Johnson212. The former London mayor and auto-proclamed leader of the official leave campaign, took an early lead with the bookmakers after years of speculation about his ambitions to succeed David Cameron. Johnson himself said it would be best to negotiate the terms of Britain’s exit adding that he had already discussed his intentions with the Queen213. However, after some days of suspance, in a surprising announcement on 30th June, the former Mayor of London said “Having consulted colleagues and in view of the circumstances in Parliament, I have concluded that that person cannot be me”. Renouncing both to the PM and the Leadership of the Tories214. Johnson felt that he did not have the support of the party after the justice secretary, Michael Gove (who should have chaired Johnson’s leadership campaign) announced that he no longer believed Johnson was the right man for the job. Grove, who worked shoulder to shoulder with Johnson in the campaign for Britain to leave the EU, launched his own bid to be the next prime minister215. After Cameron and Johnson also Nigel Farage decided to step down. The UKIP leader resigned, saying he had fulfilled his political ambitions after successfully campaigning for the UK to vote for Brexit and that it was time for him to take a rest216. It is the third time he has stepped down as the party leader217, but Farage dismissed the idea of coming back again in the future and claimed standing as an 211
David Cameron to resign as MP, Politico 12 September 2016 Boris Johnson favourite to replace David Cameron as PM after Brexit, Guardian, 24 June 2016 213 David Cameron's full resignation speech: 'I'll go before the autumn' – video – Guradian 24 June 2016 214 Leading Brexit campaigner Boris Johnson says he won't run for prime minister – CCN 30 june 2016 215 Michael Gove to stand for Conservative party leadership – Guardian 30 june 2016 216 UKIP leader Nigel Farage stands down BBC 4 July 2016 217 Farage, was originally leader from 2006 to 2009 and came back to the job after the 2010 election, overseeing the rise of Ukip from a fringe single-issue party to a major political force. He then stepped down after the 2015 election, only to “unresign” just days later, as he wanted to lead Ukip’s campaign to leave the EU. 212
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MP was no longer top of his to-do list. The MEP insisted his latest resignation was definitive but raised the prospect of taking some role in negotiating Britain’s exit from the EU, saying he “might have something to give”. Specifically, he declared he would have campaigned against any backdoor, which could maintain the UK in the EU.
The other leaders The main leaders of Brexit decided to step down, instead, the leaders of the other two main parties survived to Brexit, even if they failed their campaigns. Jeremy Corbyn re-won the election as leader of the Labourist the 24th September and Tim Farron overcomed the 17-20th September Conference of the Lib-Dem without a mistrust motion. Moreover, their positions seem also stronger than before as they endorsed even more radical proeuropean positions after the vote. Corbyn in his speech at the 2016 annual conference, promised to try to spot Brexit in the Parliament vote218. Farron, at the LibDem annual conference, after remarking the need to fight for Britain's continued role in Europe, asked a second referendum to vote the new bill with the EU219. Currently, they will not play an active role during the negotiations, but their attitude can be stronger in the parliament, where the Conservatives still need the support of another party to rule. Their importance will grow in case of a second referendum or if negotiation will go after the general election of 2019. A majority change could drive UK to a different direction.
218
Jeremy Corbyn's speech to Annual Conference 2016 24 September 2016 Labour website Britain must get a second referendum on the Brexit deal, Farron demands as he warns Labour’s collapse could mean ‘sleepwalking’ out of Europe and into 25 years of Tory rule Mail OnLine 18 September 2016 219
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“It's an explosive shock. At stake is the break-up pure and simple of the union” Manuel Valls, 24 June 2016
2. The European reaction to Brexit On the other side of the Chanel, the rest of the European Union was looking with bewilderment the events of Brexit. Since now this publication avoided to face the European actions to prevent Brexit, because simply there were not. During the referendum period, the European leaders, even if worried for the possibility of a Leave vote, believed it would not happen. Moreover, they treated the issue as a matter of UK and not of Europe. Especially the European Commission avoided to be involved and campaign, even if backing the Remain. During a visit to Berlin when asked if he would appear in Britain ahead of the June 23 Brexit referendum, Juncker replied: “No.” He told German audience during WDR’s “Europe Forum” that this was “because the European Commission is even more disliked in Britain than in Germany220’. There was a missing voice in the referendum and was the European one. It arrived as an eco, an echo carrying only bad news, which sounded like: A Leave vote would be a “catastrophe” or “Deserters will not be welcomed with open arms.’ as Juncker told the French Newspaper Le Monde221.
The reaction of the Institutions After the vote, the reaction of the European Institutions was a clear disappointment. After a light joint statement following the vote, which expressed regret for the decision and, claiming the immediate trigger of the Article 50, hoped
220 221
Juncker: Brexit a ‘catastrophe’ but I won’t campaign in UK Politico 5 December 2016 Fury as EU chief Jean-Claude Juncker brands Brits ‘deserters’ over Le Mond Brexit campaign 20 May 2016
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to have the UK as a close partner222. President Juncker showed a great disappointement, followed by the European Parliament President Shultz. More compassionate was the declaration of the Coucil President Tusk, who offered himself as negotiator, in the same way he did during the membership renegotiation. President of the European Commission Jean-Claude Juncker said that the result "would not be the beginning of the end of the EU”223. He later added that he did not expect an "amicable divorce" but it was never "a tight love affair anyway". He called for urgency on separation, even though the EU has no authority to force the invocation of Article 50 of the Lisbon Treaty, as "it doesn't make any sense to wait until October to try and negotiate the terms of their departure. I would like to get started immediately."224 President of the European Council Donald Tusk said: "This is not a moment for hysterical reactions. Today on behalf of the 27 leaders I can say that we are determined to keep our unity as 27. Until the UK formally leaves the EU, EU law will continue to apply to and within the UK, and by this I mean rights, as well as obligations. All the procedures for the withdrawal of the UK from the EU are set out in the treaties. In order to discuss the details, I have offered an informal meeting of the 27 in the margins of the European council next week. I have also proposed we start a wider reflection of the future of our union225. President of the European Parliament Martin Schulz said: "We respect the result. We have clarity for the UK to go its own way. Now is the time for us to behave seriously and responsibly. David Cameron has his responsibilities for his country, we have our responsibilities for the future of the EU. You can see what is happening to sterling on the markets. I don't want the same thing to happen to the euro."226 Thus, he declared to be sure that “The chain reaction being celebrated everywhere now by Eurosceptics won’t happen,” adding that the UK will regret
222
Joint Statement by Martin Schulz, President of the European Parliament, Donald Tusk, President of the European Council, Mark Rutte, Holder of the Presidency of the Council of the EU, Jean-Claude Juncker, President of the European Commission European Commission 26 June 2016 223 Juncker: ‘this is not the beginning of the end of the EU’ Financial Times 24 June 2016 224 EU leaders call for UK to leave as soon as possible Guardian 24 June 225 Brexit: World reaction as UK votes to leave EU - BBC, 24 June 2016 226 Brexit: World reaction as UK votes to leave EU - BBC, 24 June 2016
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their decision “Britain has just cut its ties with that market. That’ll have consequences, and I don’t believe other countries will be encouraged to follow that dangerous path.” He ended saying that "we expect the British Government to deliver it now."227 President of the EU’s rotating presidency Mark Rutte, the Prime Minister of the Netherlands said that any delay to Britain’s exit would “unnecessarily prolong uncertainty”.228
The reaction of the Member States Leaders Austria – Chancellor Christian Kern said that a domino-effect was not what he was afraid of. However, he pointed out that there was going to be a loss of status and significance for Europe because of Brexit. "The long-term economic effects will also be felt for some time." he added.229 Belgium – According to Prime Minister Charles Michel EU member states needed to "define priorities and set out a new future for Europe."230 Calling for a special “conclave” of EU leaders “We need to keep a cool head and need to see what new way of cooperation would be possible,” Bulgaria – Prime Minister Boyko Borisov shared the provision of a dominoeffect from which "only Bulgaria, Romania and Greece will remain."231 Czech Republic – Prime Minister Bohuslav Sobotka said the European Union should change quickly to support its citizens. “The European Union must change quickly. Not because Britain has left, but because the European project needs much stronger support of its citizens. Europe must be more ready to act, be flexible, less bureaucratic and much more sensible to the diversity that the 27 member states represent.”232. He also added that "The EU is for us, the Czech Republic, the best possible guarantee of stability, peace and prosperity."233
227
EU leaders call for UK to leave as soon as possible Guardian 24 June EU leaders call for UK to leave as soon as possible Guardian 24 June 229 "Brexit vote unlikely to have 'domino effect' in EU: Austria" - The Financial Express, 24 June 2016 230 Brexit: International Reaction - Euronews, 24 June 2016 231 Talking Brexit: The best quotes from a day of shock and awe - The Journal, 24 June 2016 232 Brexit: International Reaction - Euronews, 24 June 2016 233 Brexit: World reaction as UK votes to leave EU - BBC, 24 June 2016 228
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Denmark – Prime Minister Lars Løkke Rasmussen said that the result was "very sad for Denmark but it will be respected". However, he added that Brexit would not change the fact that Denmark remains an EU member and depends on the Union. “We can do some things better alone, but we are stronger together. Denmark and the Danish economy are highly dependent on the European community."234 Finland – Minister for Foreign Affairs and the leader of the Finns Party Timo Soini said that "the nation has had its say" and that "any retaliation and whinge is out of the question. France – President Francois Hollande said "I profoundly regret this decision for the United Kingdom and for Europe, but the choice is theirs and we have to respect it”.235 He added that "This is a painful choice and it is deeply regrettable both for the UK and Europe. But this choice is theirs and we must respect it, accepting all the consequences. The British vote is a tough test for Europe.".236 Prime Minister Manuel Valls said: "At stake is the breakup, pure and simple, of the union. Now is the time to invent another Europe”. Germany – Chancellor Angela Merkel said that Europe should discuss the result "together and in calm," while warning against hectic reactions. She added that the result of the referendum "[...] marks a turning point for Europe. It is a turning point for the European unification process."237Adding that the EU should not draw “quick and simple conclusions” that might create a new and deeper division.238 Greece – Prime Minister Alexis Tsipras in a televised message to the country characterised the result as "a difficult day for Europe" saying that "the EU has been dealt a blow". He summed it up as a "negative development" influenced partly by the European migrant crisis.239 According to Tsipras, the message had long been sent, in the shadow of the rise of euroscepticism in Europe. He further noted that a Danish PM: Brexit ‘very sad’ for Denmark and EU - The Local, 24 June 2016 Brexit a 'Wake-up Call' and 'End of a World' for Global Leaders - ABC News, 24 June 2016 236 Brexit: International Reaction - Euronews, 24 June 2016 237 Brexit’ Aftershocks:More Rifts in Europe, and in Britain, Too - The New York Times, 24 June 2016 238 EU leaders call for UK to leave as soon as possible the Guardian 24 June 239 Brexit a 'Wake-up Call' and 'End of a World' for Global Leaders - ABC News, 24 June 2016 234 235
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"return to the so-called security of national entrenchment" would lead to a dead end and that an immediate change of course would be necessary to defend against the rise of such movements.240 “In the short term, Brexit may help Greece, because our allies will want to solidify and show solidarity”, a senior minister told the Guardian. “But in the long term, it will not. The prospect of Grexit will increase.”241 Ireland – Prime Minister Enda Kenny's office stated: "This result clearly has very significant implications for Ireland, as well as for Britain and for the European Union."242 He stated himself: “I am very sorry that the result of the referendum is for the UK to leave the European Union”. He added that Ireland would “do our utmost” to maintain a pre-EU agreement of an open borders for travellers, goods and services Hungary – Prime Minister Viktor Orbán stated that he respects the decision and that "Brussels should hear the voice of the people". He underlined that British people were not satisfied with the policies that the EU took on the migration crisis and that the majority of Britons had interpreted EU answers to the migration crisis as ones that would weaken Europe. However, Orban added that "Europe is strong only if it can give answers to major issues such as immigration that would strengthen Europe itself and not weaken it. The EU failed to give these answers."243 The Netherlands – Prime Minister Mark Rutte said: "The dissatisfaction you see in Britain is also present in other countries, including my own. This has to be a stimulus for more reform, more welfare." He added: "First the British have to decide when they want to start the process of leaving."244 Poland – Andrzej Duda, President of Poland said "One must do everything to prevent other countries from leaving."245 Foreign Minister Witold Waszczykowski said that the decision for Brexit -which is bad news for everyone - proves the need to reform the current EU concept.246 The Foreign Minister, Witold Waszczykowski,
PM Tsipras: “We need a great progressive alliance in Europe” - International, TO BHMA, 24 June 2016 EU leaders call for UK to leave as soon as possible Guardian 24 June 242 Brexit: World reaction as UK votes to leave EU - BBC, 24 June 2016 243 Hungary PM Orban says UK vote shows Brussels must listen to popular voice - Reuters, 24 June 2016 244 Brexit: World reaction as UK votes to leave EU - BBC, 24 June 2016 245 Brexit: World reaction as UK votes to leave EU - BBC, 24 June 2016 246 Brexit: World reaction as UK votes to leave EU - BBC, 24 June 2016 240 241
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said in a statement the result showed “disillusionment with European integration, and declining trust in the EU”. He sought to reassure at least 850,000 Polish living in Britain that “during talks (...) we will aim to guarantee the rights citizens have acquired”247. Portugal – Prime Minister António Costa said that the UK will survive financially the result and that the outcome of the referendum was "a very strong signal that many Europeans no longer identified themselves with what the EU has become." He also invoked the world's "oldest alliance" between Portugal and the United Kingdom and said that Portugal will keep strong economic relations with the United Kingdom.248 Marcelo Rebelo de Sousa, President of Portugal said that "We have to serenely respect the decision of the majority of the British people, in the certainty that the European project remains valid to defend the values that mark our common identity"249. Slovakia – Prime Minister Robert Fico highlighted the need to reform the EU policy because many people were not satisfied with its migration and economic policies. He added that the result would influence the Slovak six-month tenure as president of the European Commission. "Let's realise that a great part of people living in Europe reject the EU's migration policy, there is great dissatisfaction with the EU's economic policy.". It is up to us, the remaining 27 union member states, whether we find enough strength to say that fundamental policies of the EU must go through fundamental changes."250 Spain - Mariano Rajoy, Prime Minister of Spain defended the value of the European Union and highlighted the need to remain solid after the damages cost by Brexit. "Spain will remain committed to the EU. The EU is the area of greatest prosperity and wellbeing; we will continue building a better future between us. "We need stability. Above all we will continue defending Spaniards' interests and greater European integration. "Spain now has a solid economic base in order to
247
EU leaders call for UK to leave as soon as possible Guardian 24 June Portuguese recovery will survive Brexit fears – PM Costa - The Financial TImes, 24 June 2016 249 Brexit: World reaction as UK votes to leave EU - BBC, 24 June 2016 250 Brexit: World reaction as UK votes to leave EU - BBC, 24 June 2016 248
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weather the financial turbulence which Brexit could cause. We are prepared."251 Sweden – Prime Minister Stefan Löfven said that Sweden will respect the decision of British citizens even though it will be hard for them 252. However, he added the EU must show it can respond to people's expectations because this was a "wake-up call".253 "The debate and campaigning in the run-up to the referendum should serve as a wake-up call for Europe. They elicited stark polarisation and disturbing nationalism. This shows that EU cooperation must be developed and improved." he added.254 Estonia - Taavi Roivas, Prime Minister of Estonia expressed his disappointment for the referendum result. “We will go on and stay strong with 27, but EU will not be the same without Great Britain".255 Romania - Klaus Iohannis, Romania President statement was: "Romania will negotiate so that its interest is protected and the interest of our citizens who live and work in Great Britain is protected"256. Slovenia - Slovenian Prime Minister Miro Cerar said he respects "the democratically expressed will of the British people," but also regrets the results of the vote.257 Italy – The Italian PM Matteo Renzi declared: "We have to change it, make it more humane and more just, but Europe is our home, it is our future".258 Foreign minister Paolo Gentiloni said, "The decision of the British voters must be a wakeup call."259 Croatia - Croatian Foreign Minister Miro Kovac said the British Brexit vote could slow the pace at which candidate nations join the EU. "We also want stability in southeastern Europe and we will work so that Brexit does not have too much effect on the enlargement process," Kovac told regional broadcaster N1 TV.
251
Brexit: World reaction as UK votes to leave EU - BBC, 24 June 2016 Prime Minister Stefan Löfven on the results of the referendum in the United Kingdom - Government Offices of Sweden, 24 June 2016 253 Brexit a 'Wake-up Call' and 'End of a World' for Global Leaders, ABC News, 24 June 2016. 254 Brexit: World reaction as UK votes to leave EU, BBC, 24 June 2016. 255 Brexit: World reaction as UK votes to leave EU, BBC, 24 June 2016. 256 Brexit: World reaction as UK votes to leave EU, BBC, 24 June 2016. 257 Brexit: EU leaders demand quick UK exit as economic fallout grows, CNN, 26 June 2016. 258 Brexit, in Italia esultano Lega e M5S, gli europeisti rilanciano l’integrazione, EuroNews 24 July 2016. 259 Brexit a 'Wake-up Call' and 'End of a World' for Global Leaders, ABC News, 24 June 2016. 252
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"However, we must be realistic. I’m afraid that there will be an effect on that process and that it may slow down a bit.”260 The eurosceptics call for Leave referendums Thanks to the referendum, the eurosceptic movements around Europe reached their maximum popularity. Like hoolingan members of the biggest eurosceptic movements acclaimed the result of the UK referendum, asking for similar consultation in their countries. In Italy, Movement 5 Stelle praised for Brexit as an example of democracy "it won democracy and it lost Europe of the banks" declared a M5S deputy261. The movement, born eurosceptic, proposed in its manifesto a consultative referendum on the euro. However, it claimed to stay in the EU, but with reforms of it. From this point of view, ‘grillini’ read in Brexit an opportunity, a sign that "the wind of change is getting stronger." More enthusiastic the Lega Nord, euro-hater for all its history, starting with the milk quotas of the late ‘90262. Its Leader Matteo Salvini declared ‘Europe has now the opportunity to get rid of the European Union263“, calling for a referendum on the EU also in Italy. Also Fratelli d’Italia and its leader President Giorgia Meloni reacted in a similar way, saying ‘lt is a brave choice that we believe we should follow’264. In France the situation was even worse, with the Front National that reached the 25-30% in the polls265, leaded by Marin Le Pen. She commited to make a referendum on Europe should she win the next presidential elections, saying: "this referendum on France belonging to the European Union, I will do it.’266 Adding also: "I'll be Madame Frexit if the European Union doesn't give us back our monetary, legislative, territorial and budget sovereignty." Supported also by the
260
Brexit could slow EU enlargement, Croatia warns, Reuters, 24 June 2016. Deputy Danilo Toninelli twitted after Brexit. Brexit, in Italia esultano Lega e M5S, gli europeisti rilanciano l’integrazione EuroNews 24 July 2016 262 The milk quotas are the maximum amount of milk that each EU country could produce. A market monitoring mechanism at European level, contrived to prevent an excessive production did fall the price of milk, scuttle the manufacturers. Italy has ever fight against the quotas, needing a huge amount of milk for the cheese industry. Thus, Italy got fines for 4.4 billion euro, without getting able to stop the contraction of its farms, which reduced to one sixth. L'EUROPA DICE ADDIO ALLE QUOTE LATTE, Le inichieste – La Repubblica 30 marzo 2015 263 Brexit, in Italia esultano Lega e M5S, gli europeisti rilanciano l’integrazione EuroNews 24 July 2016 264 Meloni su Brexit: «Capisco chi vuole uscire ma egoisticamente…» il Secolo 23 June 2016 265 Présidentielle: Marine Le Pen stagne dans les sondages LeMonde 3 september 2016 266 First Brexit, now Frexit! Le Pen promises EU Referendum if she wins French elections the Express, 03 September 2016 261
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more radical Nicolas Dupont-Aignanleader of France Arise267. A similar claim was coming from Austria where the leader of The Freedom Party's (FPÖ) and former presidential candidate Norbert Hofer, who lost narrowly in the 2016 Austrian presidential election (before it was annulled), warned that Austria could hold an Auxit referendum on EU membership within a year. However, after he adjusted his position and said that he would hold a referendum only in case Turkey would join the EU268. Czech eurosceptic parties Party of Free Citizens and Direct Democracy, both said they will propose, in parliament, a referendum on the withdrawal of the Czech Republic from the European Union before Brexit happened269. Influencing in this way, the Czech Republic President Miloš Zeman, who declared he was thinking to make a referendum in his country, even if he would vote for remain270. In Germany, Alternative for Germany's Frauke Petry wrote that the result was a warning that "if the EU does not abandon its quasi-socialist experiment of ever greater integration then the European people will follow the Brits and take back their sovereignty’ and calling for a referendum271. In Holland the Dutch Freedom Party leader Geert Wilders wrote in congratulations of the outcome and that it is "Time for a Dutch referendum!"272 In Sweden both The Left Party and Sweden Democrats' asked the Prime Minister Stefan Löfven to renegotiate the country terms of membership273. Hungary PM Viktor Orbán the Poland president Witold Waszczykowski
267
Le peuple a tort, changeons de peuple! Blog.nicolasdupontaignan.fr 2016-06-28. Austria’s populist presidential candidate Norbert Hofer said he opposes an anti-European Union campaign and wants a referendum on a membership in the bloc only as an ultima ratio, in comments that come as public support for an EU withdrawal has decreased over the past two months. Austria’s Hofer Says EU Exit Referendum Only Last Resort, the Wall street Journal 9 June 2016 269 An Uneasy Journey 06 june 2014 and Is Britain the most Eurosceptic country? 23 June 2016 270 Following on Britain’s vote to exit the EU, Zeman now wants to give the Czech public the chance to decide their own future, as skepticism about the merits of remaining in the bloc continues to rise. “I disagree with those who are for leaving the European Union,” Czech Radio quoted Zeman as saying on Thursday evening, according to Reuters. “But I will do everything for them to have a referendum and be able to express themselves. And the same goes for a NATO exit too,” he added. Czech president wants referendum on EU & NATO membership, RT 1 July 2016 271 Far right figures in Alternative for Germany have promised to call their own vote if they clutch power in country's general election in autumn next year. A party spokesman branded Brussels a "bureaucracy monster", before adding: "Next year the AfD will enter the German parliament and Dexit will be top on our agenda". They called the vote a Dexit as it stands for a Deutschland exit from the EU MERKEL'S WORST NIGHTMARE: Germany calls for Referendum as 'people want to be free of EU' the Express 3 July 2016 272 World reaction as UK votes to leave EU. BBC 24 June 2016. 273 Nexit, Frexit or Italeave? British vote fires up EU's 'Outers the Malay Mail Online 24 June 2016. 268
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expect a ‘Referendum Tsunami’ across Europe274 on the immigration issue.
The disaffection to the EU The raising of the popularity of the eurosceptic party was also connected with a real disaffection and unsatisfaction of the citizens in the Member States. For years the British have been among the most Eurosceptic nations in Europe. However, an examination made for DR’s Investigative Data Team275, on 40 years of surveys from Eurobarometer in all EU member states form the 1973 to the 2015, showed that several countries had a widespread Euroscepticism. The result of the survey showed that in the ’90, most countries were gathered in a positive range of answers going Is the EU membership good or bad?
from around 50% up to almost 90%, saying that the EU is good for their countries. From 2010 to 2015 there was still one quarter of the member countries in which 65% to 80% have answered that they believed the EU membership is a good thing for their country. However, on the other hand, the most sceptical quarter of the countries have dropped to a range from 35% to 45%. The data of November 2015, showed the European average of the dissatisfaction overcame the 50%.
Source Guardian, Eurobarpmeter 2015
Confirming this trend, a survey of 10,000
Europeans
across
10
countries by Pew Research276 on the spring 2016. The survey clearly shows how a majority of people felt unfavourably towards the EU in countries like: Czech Rep., Hungarian PM expects a ‘Referendum Tsunami’ across Europe on mandatory EU migrant quotas the Express 19 august 2016 and Poland mourns Brexit Politico 28 June 2016 275 Europe has grown more Eurosceptic The Danish state broadcaster DR 12 June 2016 276 Euroskepticism Beyond Brexit Pew Research Center 7 June 2016 274
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Austria, Cyprus, Italy, Slovenia, Greece, Hungary, France and Sweden 277. Exactly the countries where the eurosceptics reached the mainstream. Most of them were Are you satisfied by the European Union membership?
Pew Research Center 7 June 2016
Possibility to hold EU membership referendum
Source: Ipsos Mori, March-Aprisl 2016
asking for a referendum on the EU membership, being supported by citizens, as show a poll by Ipsos Mori278. The majority of those questioned in Italy and France said they would like a vote on their membership of the EU. In the six other countries Mori polled, more people were more in favour of a referendum than not, including Germany, Spain, Belgium and Sweden, and generally half of the people declared they wanted a referendum. Polls are barely indicative, and they must not be taken as the will of the entire population. However, the threat of a Domino effect after Brexit was real 277 278
Sweden reach however one of the highest peack of sattisfation. Half of people in nine European countries believe UK will vote to leave the EU 9 may 2016
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and had to be addressed, also within the negotiations for Brexit.
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“The political system is broken, the economy is broken and so is society. That is why people are so depressed about the state of our country” David Cameron, 31 March 2010
3. A sociological explanation to Brexit After having analysed the steps towards Brexit, a feeling of a written destiny swooped on this author. Brexit seemed an ineluctable conclusion of a difficult love story. Continuing the analogy, every love story cross moment of tension, moments that can be overcome by a reassessments of the positions or remain inconceivable, driving to separation. During the previous Chapters it was described how the eurosheptic movements growth from the first moves in the ’70, to the current mainstram. But why it happenes? Is the fault of Euro or the Austerity279 or the Populisms itself280? Lots of experts281 have found the ultimate reason of Brexit in a rebellion against the Globalization, cause of the current economical crisis. Started from the late ‘60 several crises have periodically affected the occidental world. This because the globalisation consumed the competitive advantage which have the occidental countres have, levelling them with the rest of the world (or at least the developing county). This is what happened in the 2013 after all. The financial crisis has only opened the Pandora vase of the national debt, used by European country as instrument to foster growth, while creating an economical dependency of its economies. Forced by the European Union and by itself the European countries stopped financing their economy. Orphan of the investments the European economy, not any more competitive, started to implode. As Interview with Joseph Stiglitz: “The cost of keeping the Eurozone together probably exceeds the cost of breaking it up” London School of Economics and Political Science, 5 September 2016 280 What Brexit Reveals About Rising Populism Council on Foreign Relation, 29 June 2016 281 Brexit and globalization Diane Coyle VOX 5 August 2016, Globalisation as we know it is over – and Brexit is the biggest sign yet Ruchir Sharma Guardian 28 July 2016, Brexit and the Globalization Trilemma Dani Rodrik Global Policy 17th June 2016 279
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The current theories, however, failed to explain how the globalization caused Brexit. At a first analysis it happened because the European Commission (being the economical guide of the Union Investments, Legislation, and Trade), had failed to design several policies. This explanation is arguable because (i) the most important decision are taken by European Council and this body is formed by representatives of the Member States. (ii) The failure of most of the European policies reside in their implementation, which is demanded to the Countries. A second explanation is that the European Union is invested by a power without having a democratic representation. This view is also arguable, because the Member State empowered the European Bodies and delegate them duties, with a conscious choice. Moreover, with the Lisbon process the European Parliament (subject of direct election) gained more power, becaming co-legislator. However, in the Lisbon process reside the fracture between the European governance and the European citizens. But to fully understand this process we have to make a step backwards and analyze the theory of the mass culture.
The mass culture The theory of the mass culture, exposed by Antonio Rao282, (using theory of different authors) analyzed the mass culture and its features, in particular during the ’68 protests. Once reached the economic stability, people passed form a society of subsistence to a society of wellness, where the needs have shifted from the primary (survivor and security) to the auto-realisation ones. In this society the iperconsumistic models were so diffused to become the normality, issue clearly visible in the passion for drugs and sex that the demonstrators had. Morin283 described the osmosis between imaginary and real proper of the mass culture. The concrete utopia of the mass culture is reached in the holiday villages, there people could find and environment which promised adventure power, joy and personal grow, without trouble or the need to work. The goods of this society were the VIP, which could 282
Come uscire dalla globalizzazione, Antonio Rao, Clep 2008 page 99-100 Edgar Morin is a French philosopher and sociologist who has been internationally recognized for his work on complexity and "complex thought," and his scholarly contributions to such diverse fields as media studies, politics, sociology, visual anthropology, ecology, education, systems biology, and beyond 283
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live a full life, that the normal people could only dream or bite for a few moments. Indeed, satisfaction of the need in the mass culture came through avatars, actors inside the Films and VIP in the life. That vision of the mass society was exasperated by the social media. Andy Warhol introduced precisely in the ‘68 the idea that in the future, “everyone will be world-famous for 15 minutes”284. In 2016 it happened indeed. The problem is this 15 minutes are not a life-long, for this reason in the ’60 started a crisis of the happiness within the mass society. The way to the concrete utopia started then with the diffusion of the matter of illness. The therapy was found in the collective experience of the movements and riots. The revolutionary used slogan like ‘protagonism’, ‘personal is politic’ and ‘take back our life’. Something familiar with ‘We want our country back’? Which is not a ’68 slogan but a recent speech of Nigel Farage285.
The Happening This kind of slogan had multiple effects: they carried the aspiration to brake the limits, not individually, but as a part of the group. A person belonging to mass culture express itself thought the community, unleashing the pulses (sexual, sadic or in politic the dispute) through protests and riots. This was the therapy for this diffused personal illness (or better madness). Glucksmann286 underlined that “who protest has to use the legitimate repression of the state to assure a media exposition, forcing the state to abandon the repression or to lost its legitimacy”. Marcuse287 saw the destabilisation as end in itself, but also a continuous necessity as a cure (arriving after to foresee the destruction of the state as an advisable target). Again something similar to “This is basically almost like a funeral for the European Union”, statement Marine Le Pen, during the 2016 State of the Union debate288. The mass society (and not only the riot movements) cured itself thought this
284
The expression was included for the first time in the program of the 1968 exhibition of his work in the Moderna Museet in Stockholm, Sweden 285 'We want our country back' Farage rallies troops ahead of 'Independence Day' Brexit vote the Express 26 April 2016 286 Herbert Marcuse was a German-American philosopher, sociologist, and political theorist, associated with the Frankfurt School of Critical Theory.Come uscire dalla globalizzazione, Antonio Rao, Clep 2008 page 104-108 287 André Glucksmann was a French philosopher. 288 2016 State of the Union debate, European Parliament 14 September 2016
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demonstration, named ‘happening’ (referring to a partly improvised or spontaneous piece of theatrical or other artistic performance, typically involving audience participation) where the reality was stretched and mystificate thanks to a mass use of stereotypes. They represented a collective paranoia, which indeed is the cure of the private paranoia. These happenings were full of border line element: transgression, brutality and ruthlessness. However, the main feature was the participation to the happening, to recreate a concreate utopia. In the nowadays mass culture, this participation could be also virtual, opening the way to massive participation of people, that before were not involved.
Stereotypes and archetypes The happening used stereotypes and symbols to create own new representation of the reality. But the stereotypes had this power because they awakened primordial images, hidden in the subconscious not only personal but collective, as theorized by Jung289. This archetype could be values or principles, but also their opposite, instinct and fears. They were the shadow of ancient experience, removed or repressed (an
Andrew Parson / i-immages
example could by the religious symbolism, or the idea of a gods or goods). The collective experiences awakened this forces, giving to the happening a strong power to. Who control the happening could, indeed, manipulate the masses. Now think of the picture on the Boris Johnson bus.
The archetypes of the Occidental World One of the publications which better described the role of the archetypes in the history is the Origins of Totalitarianisms of Hannah Arendt290, which highlight
289
Carl Gustav Jung was a Swiss psychiatrist and psychotherapist who founded analytical psychology. His work has been influential not only in psychiatry but also in philosophy, anthropology, archaeology, literature, and religious studies. 290 Overview of the Arendt theory Contemporary Thinkers and Come uscire dalla globalizzazione, Antonio Rao, Clep 2008 page 250-260
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the link between the masses and the irrational in the history291. Arendt detect three movements during the beginning of the past century: anti-Semitism, imperialism and tribal nationalism. The elites of that period used these movements to create the totalitarianisms (Communism, Fascism and Nazism), all having the same features. Analysing the archetypes beyond this movement, it emeged that the:
The antisemitism was one of the strongest kind of racism, which is one of the ancient atavism, refusing to equate the other populations to itself and so far discriminating them.
The imperialism was the principle of the expansion for the expansion, being so its apogee.
The tribal nationalism was the fusion of the nation idea with the imperialistic and racist ambitions. Pursuing the idea of unify all the similar people (speaking the same language, the same physical traits or the same ideas) this new forms of nationalism preached the supremacy of a race over the others. It was the other face of the racism, directed to the extern. Theese movements were more rooted in the Germanic populations (US, UK,
Germany and France) which had less time to digest the Christianism and the Roman law292. Holy German Empire and Nazism, British Imperialism, French Gaullism and the US manifest destiny were so all manifestation of this movements. The awakened archetypes were the self-divinisation and the expansion. Through the history cultures used this archetype to solve the identity crisis of its members 293. Nowadays, there was again something similar with Brexit. In Chapter I and II were described the main claims of the Brexiter:
Migration: which was a kind of racism against the not English; asking for the possibility to have control on the immigration coming to the EU and other states.
Sovereignty: which was similar to the tribal nationalism; having home rule
291
Rao proposed the analysis of the underground history of the humankind, looking to the irrational to find this primordial forces. Dividing the ideas in three layers: ephemeral: the public, organizational the state and institutions and anthropologic: the stereotypes and archetypes. Come uscire dalla globalizzazione, Antonio Rao, Clep 2008 page 229 292 The creation of the protestant and Anglican churches are a proof of this. Being founded on the self-realization they change the perspective form the god to the person. as described in the following point 293 Arendt said that however the totalitarianism reached a level of madness
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and not paying taxes to the EU.
New expansion: idea reinforced by the new UK PM Theresa May who was claiming for a Global Britain (see Chapter V).
The trigger factor The archetypes are semi-permanent forces which came from great epochal events, where great deletes, had re-establish the social equilibrium of the single and of the group. However, what is removed did not disappear, remains in the collective subconscious and reappears when the equilibrium is stressed again by a crisis. One of the biggest delete was the attempt to remove the barbaric past from the occidental history. The Europeans tried to describe the invasions as an external phenomenon, without specify that they were our ancestors. Through the institution of the medieval chivalry, the Latin historians justify and nobilitate the invaders. The chivalry assimilates the archetype of the expansion. However, it emerged during the crusade or during the discovering of the America, when the cavaliers returned to be conquerors, which could be considered a continuation of the barbaric invasions. Thanks to the Feudalism, the new power gained its legitimation. As well as the chivalry fit the barbaric practice into the Roman law, creating a new equilibrium294. Something similar happened with the First Council of Nicea, when the Christianism was integrated in the Roman Empire295. Focusing only on the European Union, the big last delete started after the Second World War. When the funders Spinelli Delors and Shuman passed the idea of a supranational institutions which could overcome the litigations between the Nations by creating a forum of discussion.296 Before litigations were solved by wars, so this new way of thinking needed to erase the bellicose past of the Europe, by incepting the idea of a European Federation. This process had a fundamental
294
The concept of legitimation is important, the Latins wanted to forget the humiliations and the Barbars wanted to find a way to legitimate the new situation. Situations that transferred in the collective unconscious what could not be elaborated. Come uscire dalla globalizzazione, Antonio Rao, Clep 2008 page 278 295 The First Council of Nicea was a council of Christian bishops convened in the Bithynian city of Nicaea (currently called Iznik, Bursa province, Turkey) by the Roman Emperor Constantine I in AD 325. This first ecumenical council was the first effort to attain consensus in the church through an assembly representing all of Christendom. 296 UN and WTO and the other supranational institutions are based on this idea.
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change during the ’90. The Maastricht Treaty 1992-1993, the Amsterdam Treaty 1997-1999 Treaty and Nice Treaty 2001-2003, plus the introduction of the Euro currency, created the base for the nowadays eurosheptic movemets raise. During this period, which could be qualified as the most florid for the European integration, the ancestral forces described before, started their actions, causing the death of the European Constitution. However, the real braking point was the Lisbon Process. The European Community, which was only an international (or regional) organisation, crossed the line, hat becoming de facto Superstate. In addition to a new flag, a new population a new currency (which was created in 1993), in 2004 the new integration was lacking legitimation. The European Leaders avoided to hold referendums, afraid that they could stop the integration, as the French and Dutch did with the European Constitution. From a sociological point of view, the attempt to make the mainstream the new integration without legislation, caused a revamp of the old one. Indeed, from the 2004 the UKIP and the British National party raised its consents. The Economic crisis of 2013 accelerate this phenomenon.
The negative selection of the elites To fully understand the process which drove to Brexit, we had to introduce another piece of the puzzle: the negative selection of the elites297. Rao identify the existence of a transnational megalopolis which is the principle vector of the globalisation fluxes. Inside this megalopolis operate the pilots of the globalisation, which create a particular milieu full of interconnections, becoming so a single transnational class. This class share almost the same values and ideas. During the period of crisis, the transnational class creates a vicious circle, making its costumes and thought flatten to the worst one. All the megalopolis is being influenced by this movement, having similar results in the leadership. This structure however is not uniform, different types of elites co-exist in the transnational megalopolis, creating alternatives in the leadership. Going back to the ’68, all the movements started with good intentions, but 297
Come uscire dalla globalizzazione, Antonio Rao, Clep 2008 page 136-1610
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degenerated in riots, sex and rock and roll, before disappearing. This fast transition, was maked by integrating the proterst movement leades in the bourgeoisie. Besides, Tourain discovered a continuity between the Movements and the yuppies and golden boys298. The analogy with nowadays is easy to make299. Populistic movements are raising both in Europe and US, having all the same claims and features. This strongly emerge analysing the evolution of the new UK PM Theresa May. Having been compared to Margaret Teacher, before the referendum, the new Iron Lady has lost her typical English aplomb. After the referendum the May thought has completely changed, passing from a convinced remains to an enthusiastic leaver. Her behaviour is changed too, starting to use the same gestures and expression of Farage e Johnson. Much to be appointed as a “revolutionary conservatives” by the economist300. Emblematic are these two picture of Theresa May and Boris Johnson. Avoiding to quote all the other European populist movements.
Brexit as ineluctable sociological process Hit by the changes delivered by the globalisation, the transnational megalopolis (which is also a product of the globalisation) has produced a negative selection of its elites. These elites have the same thought, behaviour and claims: restore of the sovereignty, closing border and a new imperialism (with some country differences). The populism is the way in which they express their self, being the 298
Alain Touraine, 1993, pg 2015 Other examples can be: the raising of the 3 Totalitarianism during the post first world war. The peace process after the 2 Word War or the Europeism of the ’90. 300 May’s revolutionary conservatism, The Economist 8-14 October page 33 299
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most favourable to attract people through stereotypes (generally false or misleading: the money set to the EU or the percentage of immigration) by awaking the primordial forces of the archetypes stored in the collective subconscious. In Britain (but also other European Countries) this elite born in the fracture of the Lisbon Process, gained the mainstream thanks to the last 2013 economic crisis (not caused by the globalisation, being instead one of the natural features of it). Their capacity to attract an unsatisfied mass society using happenings, has found an allied in the not complete delete process of digesting the nationalism, pre 2 World War. The stereotypes used to legitimate the National State are still alive in the European (and occidental) population. Instead the new ideas of Europe have been truly assimilated only by the young generation. The so called Erasmus generation has a totally different mentality compared to the one of their parents 301. Brexit was then an ineluctable eventuality, having the European Union and leaders leaved alone David Cameron to face the referendum. He could not opposite a stronger message than the Leavers. Instead of trying to oppose identity matters, Cameron described economica apocalyptic scenarios, losing the power to convince people.
301
As underlined by SANDRO GOZI Italian Secretary of State for European Affairs in his las book in GENERAZIONE ERASMUS AL POTERE IL CORAGGIO DELLA RESPONSABILITA' UBE, here his interview THE "ERASMUS GENERATION" IN POWER for SciencePo 18 May 2016
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Chapter IV - The legal route to Brexit 1.
The Half-membership
2.
The Greenland Case
3.
The provision of Article 50 TEU
Introduction After the initial shock of the vote, a question came: what is going to happen now? How a country can leave the European Union? This Chapter is dedicated to analyzing the possible legal ways in which Brexit could take form. The possibilities are only two. The Article 50 TEU, introduced during the Lisbon process, creates a special procedure in case a country wants to leave the Union. The other possibility is the Article 48 TEU which describes the process of ordinary revision of the treaties. Exploring these possibilities, it has to be taken into account the only case of a country leaving the bloc. Greenland in the 1984 decided through a referendum to leave the European Community. A decision taken alreday in 1972 when Denmark, which is the country Greenland still belongs, decided to ente the EEC. At the time, a referendum ratified the decision, but the population of Greenland voted to not enter. Looking at the past of the arctic nation, could give an idea of what EU and UK are going to look like.
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"Access to the single market requires acceptance of all four freedoms. There will be no single market a la carte.“ Jean Claude Juncker, 29 June 2016
1. The Half-membership The right of a Member State to withdraw from the European Union was introduced for the first time with the Lisbon Treaty. In fact, the Lisbon Treaty amended the Treaty on European Union (the Maastricht Treaty) adding this new Article 50 into it. Prior to that, the question of the right of withdrawal was highly controversial. No procedure was displayed by the Treaty of Rome and following ones. The provision about European Union as a permanent organisation, as now reflected in Articles 53 TEU and 356 TFEU, was understood by many experts to exclude the possibility of an exit. The federal features of the EU and the materially constitutional content of the EU Treaties also tend to refuse the possibility of a state terminating its EU membership. Article 53 (ex Article 51) - TEU This Treaty is concluded for an unlimited period. Article 356 (ex Article 312) - TEC This Treaty is concluded for an unlimited period.
The international law was the only reference in case a country wanted to go out. The other way would be the procedure of revision of the Treaties, now under the Article 48 TEU. Following this idea and the precedent of Greenland, some people in London (Boris Johnson) thought that a half-way house was a viable option. The idea was that the UK could remain a member of the EU, but one with a special status, through a revision of the EU treaties. Such a special status would allow the UK to continue participating both in the internal market and in the corresponding EU decision-making process, while obtaining the right to opt out of
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most of the rest of what the Union does. This debate over the Article 48 TEU happened also during the referendum of Scottish independence.
The International Law Stating from the international law. The clausula rebus sic stantibus, also transposed in Article 62 of the Vienna Convention of the Law of the Treaties, provides the possibility of unilateral withdrawal from international treaties. The Vienna Convention, Section V from Article 42 to Article 72, gives different possibility of withdraw. In particular, Article 62 state that a party can withdraw from a treaty if there is a fundamental change of circumstances which has occurred compared to those existing at the time of the conclusion of that treaty. The changes of conditions in this case would be the change of citizen will, even if its arguable this can be an adequate condition and if the citizens have this power. However, according to consitutional experts, it also applies to EU. Article 62. FUNDAMENTAL CHANGE OF CIRCUMSTANCES, the Vienna Convention A fundamental change of circumstances which has occurred with regard to those existing at the time of the conclusion of a treaty, and which was not foreseen by the parties, may not be invoked as a ground for terminating or withdrawing from the treaty unless: (a) The existence of those circumstances constituted an essential basis of the con sent of the parties to be bound by the treaty; and (b) The effect of the change is radically to transform the extent of obligations still to be performed under the treaty. 2. A fundamental change of circumstances may not be invoked as a ground for terminating or withdrawing from a treaty: (a) If the treaty establishes a boundary; or (b) If the fundamental change is the result of a breach by the party invoking it either of an obligation under the treaty or of any other international obligation owed to any other party to the treaty. 3. If, under the foregoing paragraphs, a party may invoke a fundamental change of circumstances as a ground for terminating or withdrawing from a treaty it may also invoke the change as a ground for suspending the operation of the treaty.
However, there were discordant opinions, some authors denied indeed the possibility of a Member State withdrawing unilaterally. Negotiations are needed and the Member States as 'masters of the Treaties' should reach an agreement for the termination (and its conditions) of a membership. Finally, other scholars rejected the possibility of withdrawal from the Union as a whole, supporting their 101
vision thanks to the specific status of the EU. Which they assimilate to a Federation of states, so a withdrawal would be considered more a secession. Indeed, no matter the different opinions, the application of international law to fill the gaps in the EU Treaties has been often seen as flawed. The specific characteristic of the EU as a supranational organisation, gave autonomous legal order and its own rules.
The Scotland independence The Scottish Government published in November 2013, Scotland's Future302, explaining how Scotland might become an independent country, so called secession303. In this publication the Government outlined its strategy to remain inside the EU, while out of the UK.
Article 49 - TEU Any European State which respects the values referred to in Article 2 and is committed to promoting them may apply to become a member of the Union. The European Parliament and national Parliaments shall be notified of this application. The Applicant State shall address its application to the Council, which shall act unanimously after consulting the Commission and after receiving the assent of the European Parliament, which shall act by an absolute majority of its component members. The conditions of admission and the adjustments to the Treaties on which the Union is founded, which such admission entails, shall be the subject of an agreement between the Member States and the Applicant State. This agreement shall be submitted for ratification by all the contracting States in accordance with their respective constitutional requirements. The conditions of eligibility agreed upon by the European Council shall be taken into account.
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Scotland's Future, the Scottish government 15 November 2013 The term secession designates the unilateral withdrawal from a state of part of its territory and population with the will to create a new state. The International Law does not recognise a real right to create an independent state, but this does not mean that secession is prohibited. The traditional view, according to which “secession is not a question of law, but a question of fact,” leads to an impression of perfect “legal neutrality” on the matter of secession. This could be misleading for the following reasons. First, in case of violation of peremptory norms (e.g., external aggression), international law denies the quality of “state” to a secessionist entity, notwithstanding its “effectiveness.” The maxim ex iniuria ius nor oritur defines the external limits of acceptance of the principle of effectiveness. Second, even though secession is not “prohibited,” international law disfavours it and creates a presumption against its effectiveness and in favour of the territorial integrity of the parent state. Indeed, the final consent or, at least, the “resignation” of the parent state and the abandonment of its efforts to reassert its authority seem crucial in permitting the secessionist entity to “normalize” its situation by demonstrating the “ultimate success” of the secession. The traditional reluctance (with the exception of Kosovo) of third states to recognize such entities as states pending a strong opposition of the old sovereign authority, leads to the existence of many “de facto” unrecognized entities, which is problematic for international law. Third, it has often been suggested that, even though there is no “general” right to secession outside the colonial context, there is nonetheless a “qualified” right to “remedial secession” in case of gross violations of human rights of individuals belonging to a specific group. Both legal scholars and national states remain strongly opposed concerning the existence of such a right. Finally, the principle of uti possidetis juris also interacts strongly with the principle of effectiveness. Its applicability outside the colonial context has also created considerable debate in international legal scholarship. 303
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Article 48
1. The Treaties may be amended in accordance with an ordinary revision procedure. They may also be amended in accordance with simplified revision procedures. Ordinary revision procedure 2. The Government of any Member State, the European Parliament or the Commission may submit to the Council proposals for the amendment of the Treaties. These proposals may, inter alia, serve either to increase or to reduce the competences conferred on the Union in the Treaties. These proposals shall be submitted to the European Council by the Council and the national Parliaments shall be notified. 3. If the European Council, after consulting the European Parliament and the Commission, adopts by a simple majority a decision in favour of examining the proposed amendments, the President of the European Council shall convene a Convention composed of representatives of the national Parliaments, of the Heads of State or Government of the Member States, of the European Parliament and of the Commission. The European Central Bank shall also be consulted in the case of institutional changes in the monetary area. The Convention shall examine the proposals for amendments and shall adopt by consensus a recommendation to a conference of representatives of the governments of the Member States as provided for in paragraph.4. The European Council may decide by a simple majority, after obtaining the consent of the European Parliament, not to convene a Convention should this not be justified by the extent of the proposed amendments. In the latter case, the European Council shall define the terms of reference for a conference of representatives of the governments of the Member States. A conference of representatives of the governments of the Member States shall be convened by the President of the Council for the purpose of determining by common accord the amendments to be made to the Treaties. The amendments shall enter into force after being ratified by all the Member States in accordance with their respective constitutional requirements. 5. If, two years after the signature of a treaty amending the Treaties, four fifths of the Member States have ratified it and one or more Member States have encountered difficulties in proceeding with ratification, the matter shall be referred to the European Council born1. Simplified revision procedures 6. The Government of any Member State, the European Parliament or the Commission may submit to the European Council proposals for revising all or part of the provisions of Part Three of the Treaty on the Functioning of the European Union relating to the internal policies and action of the Union. The European Council may adopt a decision amending all or part of the provisions of Part Three of the Treaty on the Functioning of the European Union. The European Council shall act by unanimity after consulting the European Parliament and the Commission, and the European Central Bank in the case of institutional changes in the monetary area. That decision shall not enter into force until it is approved by the Member States in accordance with their respective constitutional requirements. The decision referred to in the second subparagraph shall not increase the competences conferred on the Union in the Treaties. 7. Where the Treaty on the Functioning of the European Union or Title V of this Treaty provides for the Council to act by unanimity in a given area or case, the European Council may adopt a decision authorising the Council to act by a qualified majority in that area or in that case. This subparagraph shall not apply to decisions with military implications or those in the area of defence. Where the Treaty on the Functioning of the European Union provides for legislative acts to be adopted by the Council in accordance with a special legislative procedure, the European Council may adopt a decision allowing for the adoption of such acts in accordance with the ordinary legislative procedure. Any initiative taken by the European Council on the basis of the first or the second subparagraph shall be notified to the national Parliaments. If a national Parliament makes known its opposition within six months of the date of such notification, the decision referred to in the first or the second subparagraph shall not be adopted. In the absence of opposition, the European Council may adopt the decision. For the adoption of the decisions referred to in the first and second subparagraphs, the European Council shall act by unanimity after obtaining the consent of the European Parliament, which shall be given by a majority of its component members.
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The discussions are still ongoing over the possibility of an immediate EU membership after the leave. Some experts support the needs to apply for a new membership, Article 49 TEU, others say that it would be necessary a revision of the treaty, Article 48 TEU. The Scottish position was in favour of the Article 48304. Indeed, in the ideas of the Scottish party Article 49 TEU provides the legal basis, and defines the procedure, for a conventional enlargement where the candidate country is seeking membership from outside the EU. As Scotland joined the EU in 1973 this is not the starting position from which the Scottish Government will be pursuing independent EU membership. Article 49 does not appear to be the appropriate legal base on which to facilitate Scotland’s transition to a full EU membership. The Scottish Government considered more appropriate the use of Article 48, which provides for the Treaty amendment thanks to an agreement with the representatives of the Member States through an ordinary revision of the treaty. Thus with a convention of the representatives of the member’s state Government or a Council meeting (if the European Parliament agree). The Treaty amendment needs a further adoption by the national parliaments of the member state. The Scottish Government believed the approach to EU membership should go under the principle of continuity of effect. Under this principle the transition to independent membership would carry directly all the EU Treaty obligations and provisions that currently apply to Scotland. The Scottish plan also highlighted the needs of further specific provisions, including detailed considerations around current opt-outs, in particular the Eurozone, Justice and Home Affairs Chapter and the Schengen travel area.
The half-membership Some experts believed the Article 48 TEU could be used to create a new kind of membership, giving the UK the possibility to opt-out some provision of the Treaties, quoting also the agreement made between EU and UK as a soft example of it. In February, European Council the 28 Member States305 approved special 304 305
Scotland's Future, the Scottish government 15 November 2013, chaper 6 pag 220. European Council, 18-19 February 2016, European Council conclusions, 18-19 February 2016.
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provision which would entered into force after the referendum if the yes had won (which now are invalid). The changes weren’t fundamental, however several Countries expressed disappointment on it and now they should vote an even deeper one. Highlighting the position of the UK is already atypical, in accordance with Article 48 TEU, any change to the Treaties would require a common agreement and ratifications “by all the member-states in accordance with their respective constitutional requirements” (which may mean a referendum in the Member States). The subject of negotiation would not be the exit of a member-state, but the renegotiation of the treaties among all 28 members, in order to create a new status for one of them. In the current political climate this would be particularly difficult, considering the increase of the euroscepticism on the continent, and without knowing if the British people would later accept the results. Moreover, the ratification process might take several years. However, the legal doubt over the UK vote participation should be solved in favour of it. Using the Article 48 TEU, Britain will not have the status of leaving country, so it will fully participate to the discussion and vote. The main issue is the will for the other Member States to accept or refuse this type of arrangement. This means the Member States would be accepting a ‘pick and choose’ approach to membership. Such a privilege could be attractive for other EUsceptical countries. For example, it could open the door to similar requests from the likes of Switzerland, Norway, Iceland, Liechtenstein and the three ‘states of a small dimension’, Andorra, Monaco and San Marino. It could also create political tensions in certain EU member-states, such as Sweden, Denmark and others, where eurosceptic political parties could be tempted to push for half-member status, thereby opening up existential issues for the EU. Instead, the EU membership, despite some opt-outs, is still considered by many EU leaders to be a single package of benefits and obbligations. Thus, conferring a special status to the UK, so conceding advantages which have consistently been refused to Norway, Switzerland and others, would be unacceptable to most Member States and to the EU Institutions. Indeed, they had already clarified that they were not going to give
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an “a la carte” membership. Furthermore, the cited the case of Greenland, is not a concrete option for the UK as well as suitable (as explained in the following paragraph). Finally, under the Article 50 TEU a half of membership seems an abuse, this Article is not the right legal instrument to achieve the goal of such a partial withdrawal, because it adopts a 'black or white' approach: or in or out.
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“British people should remember that the EU was created for the benefit of member states, not for those outside” Lars Vesterbirk, 22 June 2016
2. The Greenland case Always cited as example of exit, the Greenland case cannot be considered as a real withdrawal. In 1982 the Greenland decided with a referendum to quit the EEC. At that time the Article 50 TEU did not exist, so the only way to implement a withdrawal was the procedure of revision of the treaty, now Article 48 TEU. However, what happened back in the ’80 cannot be considered as a withdrawal, in the way that UK understand. This is simply because the Greenland was not a Member State of the EU. Belonging to Denmark, the arctic nation is not a sovereign state, and so it had never been a formal member of the EU. As described in this pharagraph, Greenland changed its status through a process of revision of the Treaty. However, this is also the only precedent of a country leaving the EEC, so it is interesting to understand how the negotiation was conducted and which outcome they had.
The struggle for indipendence Greenland was fist colonized by Icelanders and then by Norwegians. It became
part
of
Denmark
since
the
1380,
when
the
unification
of Norwegian and Danish under one kingdom was established first with the name of Kalmar Union and then Denmark–Norway. The kingdom was dissolved on 14 January 1814 as a result of the Napoleonic Wars in Europe. With the Treaty of Kiel, Denmark gained full colonial control of Greenland but lost Norway that became independent. From 1814–1953, Greenland was a colony, not independent and not part of Denmark, but directly controlled by the Danish government.
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The process of self-independence started in 1953, when Greenland gained representation in the Danish Parliament and was recognized as a Danish province. Greenland joined the EEC in 1973306 along with Denmark, having no decisionary autonomy. A majority of 70% of the Greenlandic votes had been against membership in the Danish EC referendum held in 1972. But they had to follow the Danish who had voted to stay. In 1979 Danmark agreed to establish the Greenlandic home-rule (Denmark remained in control only of foreign relations and defense of Greenland) and at the same time the eurosceptic Siumut won the 1979 election. Consequently, in the spring of 1981 the Parliament of Greenland agreed to hold a consultative referendum on their continued membership. In 1982 the 53% of leave voters, Greenland decided to leave the EEC. Recently in 2008 with another referendum Greenland's citizens approved the Greenlandic self-Government referendum. The 75% of the voters stended in favor of independence. Greenland took control of law enforcement, the coast guard, and the legal system. The official language changed from Danish to Greenlandic on 21 June of 2009, Greenland national day. Nowadays the Greenland's former Prime Minister, Kuupik Kleist, has repeatedly expressed the need to gain an economic stability as a basis for full political independence from Denmark.307 Turning back on 23 February 1982, the 53% of the referendum voters decided to leave the EEC. The reasons of the vote were basically two: (i) the willing to gain more indipendence and self-Government (as we
Greenland EU referendum Choice Votes % No 12,615 53.02 Yes 11,180 46.98 Total votes 23,795 100.00 Source: Petersen, Folketingets EU-Oplysning,"Svar på spm. om Nicetraktaten, folkeafstemning, til udenrigsministeren", 27 July 2001
saw before) and (ii) the protection of the fisheries market (as clearly undertendable from Protocols annexed to the treaty and so to the EC treaty, the only economical issue discussed at the time was the Fishing and Fisheris products). The process of negotiation tooked two full years, following more than 100 meetings with EU officials, ending in 1984 with the Greenlad Treaty. Greenland got some exceptions like about restrictions on business for non-residents, and about fisheries. Some campaigners have touted the year 2021 (the 300th anniversary of Danish colonial rule) as a date for potential independence. 306 307
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Entered into force from Genuary 1985 the treaty formally allowed Greenland to withdraw from the European Communities form the 1st February 1985. An idea of what it means negotiate a withdrawal came from Mr. Lars Vesterbirk, Greenland’s former representative to the EU and negotiator of the traty: “The negotiations were a surprisingly unpleasant job. The EU member states would not take us seriously because they were not willing to accept that you should or could leave. At the time, you could become a member of the EU but you couldn’t leave, they were very tough on us, [wanting] to keep us inside. If it took Greenland more than two years to negotiate mainly on fisheries, in my eyes it will be an immense job for the UK and it will take many more years before they find a valid situation. “ The warn of Mr. Vesterbirk was clear, the negotiations would be really painfull and two years would not be enough to conclude the negotiations. Indeed, the UK had become deeply involved in the European Union, with much more economical, legislative and political implications to address, than Greenland. Furthermore, the European Union itself had covered a wider range of politics and enlarged to the actual 27 Member States. Some pessimistic experts estimate almost 10 years to end the negotiations. Moreover, economical outcome from the soft exit of Greenland should warn the UK. After leaving the EU a collapse in global commodity prices had put on hold Greenland's hopes of enticing foreign investment from China and other nations to bolster its economy with projects in gold, rare earths, iron ore and oil.308
Not a withdrown Legally speaking, this exit is not a 'withdrawal', Greenland was not a Member State but was, and remains, part of an EU Member State, Denmark. This is why its leave from the EC took place in the form of a reduction of the territorial jurisdiction of the Treaties. Indeed, the Greenland Treaty was signed between the member states of the European Communities (not Greenland which is still not an indipendent state), the Treaty ammended the Treaties of the European 308
In Greenland, some suggest the unthinkable - rejoin the EU, Reuters, Jun 14, 2016
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Communities. It is now an integral part of the constitutional basis of the European Union becoming the Protocol 34. Due to its former status as a colony and its geographical distance from the EU, Greenland became an 'associated overseas territory' of Denmark, like others of UK France and Holland (which status is described in Article 204 TFEU)309. Special arrangements with the EU were created. In particular, Greenland fisheries' products hD the access to the Single Market, in return EU fishermens gain access to Greenland waters. At the first sight seems that Greenlanders obtained what they wanted, but the reality is different: “The EU got almost the same amount of fishing rights they had before, and we had the same amount of money for our fish” Vesterbirk said. The protocols and the analysis of the fishers’ markets corroborate it. Another advice for the UK that the future agreement would be made probably to maintain the status quo. Therefore Brexit might not mean the full independence and selfruling that was spotted by the UKIP during the campaign for the referendum. Supporting this theory, there are also the provisions of the Treaty of Greenland, which clearly state that closer relations with the EU had to be mantained and developped: “Whereas, in view of the special features of Greenland, this proposal should be accepted by arrangements being introduced which permit close and The overseas countries and territories (OCT) are dependent territories that have a special relationship with one of the member states of the EU, and have been explicitly invited by the EU treaty to join the EU-OCT Association (OCTA).[10] They were listed in Annex II acc. to Article 198 of the Treaty on the Functioning of the European Union, which aside from inviting them to join OCTA, also provided them the opportunity to opt into EU provisions on the freedom of movement for workers[11] and freedom of establishment.[12] Yet, the freedom of establishment is limited by Article 203 TFEU and the respective Council Decision on OCTs (2013/755/EU). Its Article 51(1)(a) prescribes only that "the Union shall accord to natural and legal persons of the OCTs a treatment no less favourable than the most favourable treatment applicable to like natural and legal persons of any third country with whom the Union concludes or has concluded an economic integration agreement." Again this can be, according to Article 51(2)(b) limited. The obligations provided for in paragraph 1 of this Article shall not apply to treatment granted under measures providing for recognition of qualifications, licences or prudential measures in accordance with Article VII of the General Agreement on Trade in Services (GATS) or the GATS Annex on Financial Services. The OCTs are not subject to the EU's common external customs tariffs[13] but may claim customs on goods imported from the EU on a non-discriminatory basis.[14] They are not part of the EU and the EU acquis does not apply to them, though those joining OCTA are required to respect the detailed rules and procedures outlined by this association agreement (Council Decision 2013/755/EU).[15] OCTA members are entitled to ask for EU financial support. The OCT list was ammended several times and now included: Twelve overseas territories of the United Kingdom (all but Gibraltar, which, unlike the other territories, is part of the European Union (see below), and the Sovereign Base Areas of Akrotiri and Dhekelia on Cyprus), namely: Anguilla, Bermuda,British Antarctic Territory, British Indian Ocean Territory, British Virgin Islands, Cayman Islands, Falkland Islands, Montserrat, Pitcairn Islands, Saint Helena, Ascension and Tristan da Cunha, South Georgia and the South Sandwich Islands, Turks and Caicos Islands. Six French overseas territories: the French Southern and Antarctic Lands (which include the French Scattered Islands in the Indian Ocean), Saint-Pierre and Miquelon, Saint Barthélemy, French Polynesia, and Wallis and Futuna are overseas collectivities (formerly referred to as overseas territories) of France, while New Caledonia is a "sui generis collectivity". Six territories of the Netherlands: Aruba, Curaçao, and Sint Maarten are classified as "countries" under Dutch law and have considerable internal autonom. Bonaire, Sint Eustatius, and Saba (collectively called Caribbean Netherlands) are "special municipalities" of the Netherlands proper, inheriteting their OCT status from the Netherlands Antilles which was dissolved in 2010. 309
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lasting links between the Community and Greenland to be maintained and mutual interests, notably the development needs of Greenland, to be taken into account” – preambol of Greenlad Treaty 1984.
Current Relationship A close relationship is remarkable growing in the recente decisions of the EUGreenland Partnership: Fisheries Partnership Agreement of 30 July 2006, the "Council Decision 2013/755/EU" and mostly "Council Decision 2014/137 of 14 March 2014" (outlining the relations). In particular, the last decision, defined the relationship with EU and the partnership (as Article 1) Greenland and Denmark: a) Cooperation and dialogue in areas such as: (a) global issues concerning, inter alia, energy, climate change and environment, natural resources, including raw materials, maritime transport, research and innovation; and (b) Arctic issues (Article 2.2) b) In coherence with other areas of the Union's external action as well as with other relevant Union policies (artile 2.3) c) Cooperation activities to decide in close consultation between the Government of Greenland, the Government of Denmark and the Commission (Article 2.4). The main areas of cooperation of the partnership shall include: (a) education and training, tourism and culture; (b) natural resources, including raw materials; (c) energy, climate, environment and biodiversity; (d) Arctic issues; (e) the social sector, mobility of the workforce, social protection systems, food safety and food security issues; and (f) research and innovation (Article 3) d) The cooperation is summed in a Programming Document for the Sustainable Development of Greenland (the ‘PDSD’). The Government of Greenland is the responsible of this for the formulation and adoption of sector policies in the main areas of cooperation referred to in Article 3(2) and shall provide the adequate follow-up. But the formulation of the policy is tripartite, before the draft is prepared in accordance by the governement of Greenland and
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Denmark and after submitted to the European Commission, which decides if it is in line with the EU interest and policy. During this procedure notsubstantial modification can adress maximum of the 20% of the inital allocation. These modifications have to be reported to European Parliament and to the Council within one month of the date of adoption of the relevant decision (Article 4). e) The European Union financial assistance may be given to the following activities: (a) reforms and projects; (b) institutional development, capacity building and integration of environmental and climate change aspects; and (c) tecnical cooperation programmes. The indicative amount for the implementation of this Decision for the period from 2014 to 2020 shall be EUR 217 800 000. (Article 9 and 10) Currently the Prime Minister Kim Kielsen declared that "the current situation is good”. We have a very good partnership with the EU currently in terms of education, fisheries and research." Greenlanders still have one foot in the EU because they are all citizens of Denmark. The North Atlantic Island uses the Danish crown and has free trade with the EU under a treaty which, crucially for Greenland, gave it control of fishing grounds rich in prawns and halibut. Fisheries still account for about 90 percent of exports. Moreover, the European Union provides about 31 million euros ($34.78 million) a year to Greenland, mainly to promote education, and 16 million euros a year to help develop fisheries. Since breaking from the EU, Greenland has relied heavily on cash from Denmark, currently a grant of 3.6 billion crowns ($546.25 million) a year. Despite of it, many Greenlanders would like to put more distance to the EU by seeking full independence from Denmark. Greenland's association of fishermen and hunters opposes the possibility to rejoin, Tonnes Berthelsen deputy head of KNAPK said "We will rule our own waters". The process that has not so far to be reached, but which implies an automatic exit from the EU association. New negotiations for a kind of partnership should be made, creatig disavanteges in lot of sectors, in particular: tourism and trade. These problematic situations pushed some
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Greenlanders to call for rejoin the EU. Michael Rosing, a member of parliament for the Democrats, a junior member of the ruling coalition with four of 31 seats in parliament, said "We should at least look into the option of rejoining", supporting his position with the possibility of investment, for instance in infrastructure for ports and airports, as a step towards diversifying the fish-dependent economy. Henrik Leth, chairman of Greenland's biggest private company Polar Seafood and of the Danish Business Association, said "What was worth a lot in 1985 is going to gradually disappear. We have to investigate whether it would be a good thing to join the EU." Mr. Vesterbirk also said “British people should always remember that the EU was created for the benefit of member states, not for those outside,” concluding with “You don’t get anything without giving something in return.”
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“ We will invoke it when we are ready, and we will be ready soon. We will invoke Article 50 no later than the end of March next year” Theresa May, 2 October 2016
3. Analysis of the Article 50 TEU After having seen that the possibility of a half-membership under the Article 48 TEU is not a feasible way forward. The only route to leave the EU is drawn by the Article 50. During the negotiation of the Constitutional Treaty, leater aborted, the introduction of an “Exit clause“ was a necessary compromise in order to reach agreement. This is clear from the comments attached to the draft provision (Article I-59): 'political signal to anyone inclined to argue that the Union is a rigid entity which it is impossible to leave'. A procedure under the Treaties reflected the needs of the EU and its Member States. It also reflected the reality, a withdrawal clause would have been allowed anyway through application of the international law. Therefore, the legislators believed that it would be better to have and internal provision, instead of refering to international law. Therefore, the 'exit' clause was included unchanged in the Lisbon Treaty. Thanks to the introducion of Article 50 TEU, the withdrawal from the EU is now governed by EU law and no recourse to international law is possible (according to experts). However, in case of arising issues o interpretation the Article 50 TEU has still to be read in the light of the internation law. The main changes compared with the international law is the abscence of ultima ratio clause. Which forces the withdrawing party to give a formal explanation of the reason (clearly highlighting the changes of the status quo) and then to attempt a renegotiation of the treaty. These provision are not reflected in Article 50, a Member State can decide to leave has no obligation to try a different way310.
J P Terhechte, 'Der Vertrag von Lissabon: Grundlegende Verfassungsurkunde der europäischen Rechtsgemeinschaft oder technischer Änderungsvertrag?', Europarecht 2008, Heft 2, pp. 143, 152. 310
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Article 50 – TEU 1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements. 2. A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament. 3. The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period. 4. For the purposes of paragraphs 2 and 3, the member of the European Council or of the Council representing the withdrawing Member State shall not participate in the discussions of the European Council or Council or in decisions concerning it. A qualified majority shall be defined in accordance with Article 238(3)(b) of the Treaty on the Functioning of the European Union. 5. If a State which has withdrawn from the Union asks to rejoin, its request shall be subject to the procedure referred to in Article 49.
How to start the process Article 50 TEU does not establish any substantive conditions for a Member State to be able to exercise its right to withdrawal, but only procedural requirements. The process is initiated by a notification, under Article 50(2), from the Member State wishing to withdraw to the European Council. The decision of this notification is entirely in the hand of the Member State which has to decide in accordance with its internal law and so notify it to the Council. According to the current interpretation, the Council cannot decide to trigger the Article 50, and so starting the negotiations, even if the Country decision making process is ended. Again, according to the current interpretation, informal discussions could take place between the Leaving Members and other Member States and/or EU Institutions prior to the notification. After that notification, the European Council provides guidelines for the negotiations. The negotiations will lead to an arrangement which should cover the departing Member State's future relationship with the Union.
The timetable under Article 50 The Article 50 gives all the power to the leaving Member, the UK can decide
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when the 2-year period starts, by notifying its intention under Article 50(2). David Cameron during his resignation announcement on 24 June 2016 had wisely indicated that it would be a decision of the new Prime Minister when formally to initiate the process under Article 50 TEU. This reversed a previous suggestion of his, that such a notice would be given right after the referendum vote to leave. The new UK Government is convinced to conclude the process within 2 years, but lots of experts think the complexity of the issue would lead the negotiations for more than 10 years. As shown by the Greenland Case, it took 2 years for the negotiators to reach an agreement on fisheries. Besides, the agreement lay down practically the same condition as before. Therefore, it seems unrealistic that the UK will negotiate both the exit and a new trade deal in 2 years. The situation is uncertain because none of the parties believed the vote of the referendum would be to leave. Thus The UK Government, the Leave Campaigners and the European Commission avoided to prepare a serious Brexit plan (as, for instance, did the Scottish Government before the Independence Referendum). Therefore, the day after the referendum, nobody was ready to approach the exit. The negotiators have been appointed from both of the side and the task forces are working out a plans and timetable for the future actions to take. At ministerial level the situation is more chaotic. Britain is still looking to hire foreign trade negotiators and experts to help it meet the challenge of striking new trade deals with countries in Europe311. Indeed, the European Commission negotiates trade deals on behalf of the EU member states, meaning Britain has not had its own dedicated team of trade negotiators since it joined the bloc in 1973312. The UK Government is not yet ready, but an approximate date has been setted out. After Boris Johnson anticipate that the UK will trigger the Article 50 in early 2017, Theresa May confirmed it in her speech, presenting the Brexit Plan, that she will trigger Article 50 TEU before the end of March 2017, setting in motion the
David Davis’s Brexit ministry, expected soon to number as many as 500 staff, and the government’s legal department will bear the brunt of extracting Britain from the bloc and defining its future relationshipWhat will happen now timescale for T has been revealed? 2 October 2016. 312 Britain has negotiated its own trade deals in over 40 years, Fortune, 4 july 2016. 311
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two-year process of leaving the European Union313. Ending the incertitude is not the only reason to start the process of Brexit. It should be completed within the current European Parliament, May 2019. It also should not collide with the UK General Election period, May 2020. Indeed, keeping the maximum delay possible, the Article 50 TEU should be triggered the in the early 2017, leading to the exit on in 2019. Further considerations concern also the EU budget which runs for each calendar year, so that date would avoid the complications which would arise over the budget if the UK were an EU Member for only part of a budget year. Moreover, the main program of EU long term funds Horizon, will also end in 2020 giving the possibility to conclude it without budget consequences. In any case after the 2-years the membership ends automatically, even if the negotiations are not ended. However it is also possible, under Article 50(3) TEU, for the 2-year period to be extended with the mutual consent of the European Council, so both the UK itself and the EU. However, there are a lot of inconvenient in this. First the deadline we have presented, second the general tendency for the international negotiations to be concluded just before a deadline and because of its pressure. Carrying on the negotiations will drive more uncertainty. Therefore, it would be better to end the negotiations during the time set. In this context, the question could be posed as to whether (once a Member State has notified the European Council of its intention to withdraw from the EU, and a withdrawal agreement has been negotiated) it can, depending on the results of the negotiations, unilaterally revoke its notification and suspend the withdrawal procedure. Most commentators argue that this is impossible or at least doubtful, from a legal point of view. The Article 50 TEU does not expressly provide for the revocation of a notice and establishes that, once opened, the withdrawal process ends either within two years or later, if this deadline is extended by agreement. Furthermore, it should be noted that the event triggering the withdrawal is the unilateral notification as such and not the agreement between the withdrawing state 313
Theresa May to trigger Article 50 by end of March 2017 Guardian 2 October 2016.
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and the EU. The merely declaratory character of the withdrawal agreement for cancellation of membership derives from the fact that the withdrawal takes place even if an agreement is not concluded (Article 50(3) TEU). This does not mean, however, that the withdrawal process could not be suspended, if there was mutual agreement between the withdrawing state, the remaining Member States and the EU institutions, rather than a unilateral revocation.
Article 218 - TFEU 1. Without prejudice to the specific provisions laid down in Article 207, agreements between the Union and third countries or international organisations shall be negotiated and concluded in accordance with the following procedure. 2. The Council shall authorise the opening of negotiations, adopt negotiating directives, authorise the signing of agreements and conclude them. 3. The Commission, or the High Representative of the Union for Foreign Affairs and Security Policy where the agreement envisaged relates exclusively or principally to the common foreign and security policy, shall submit recommendations to the Council, which shall adopt a decision authorising the opening of negotiations and, depending on the subject of the agreement envisaged, nominating the Union negotiator or the head of the Union's negotiating team. 4. The Council may address directives to the negotiator and designate a special committee in consultation with which the negotiations must be conducted. 5. The Council, on a proposal by the negotiator, shall adopt a decision authorising the signing of the agreement and, if necessary, its provisional application before entry into force. 6. The Council, on a proposal by the negotiator, shall adopt a decision concluding the agreement. Except where agreements relate exclusively to the common foreign and security policy, the Council shall adopt the decision concluding the agreement: (a) after obtaining the consent of the European Parliament in the following cases: (i) association agreements; (ii) agreement on Union accession to the European Convention for the Protection of Human Rights and Fundamental Freedoms; (iii) agreements establishing a specific institutional framework by organising cooperation procedures; (iv) agreements with important budgetary implications for the Union; (v) agreements covering fields to which either the ordinary legislative procedure applies, or the special legislative procedure where consent by the European Parliament is required. The European Parliament and the Council may, in an urgent situation, agree upon a time-limit for consent. (b) after consulting the European Parliament in other cases. The European Parliament shall deliver its opinion within a time-limit which the Council may set depending on the urgency of the matter. In the absence of an opinion within that time-limit, the Council may act. 7. When concluding an agreement, the Council may, by way of derogation from paragraphs 5, 6 and 9, authorise the negotiator to approve on the Union's behalf modifications to the agreement where it provides for them to be adopted by a simplified procedure or by a body set up by the agreement. The Council may attach specific conditions to such authorisation. 8. The Council shall act by a qualified majority throughout the procedure. However, it shall act unanimously when the agreement covers a field for which unanimity is required for the adoption of a Union act as well as for association agreements and the agreements referred to in Article 212 with the States which are candidates for accession. The Council shall also act unanimously for the agreement on accession of the Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms; the decision concluding this agreement shall enter into force after it has been approved by the Member States in accordance with their respective constitutional requirements.
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9. The Council, on a proposal from the Commission or the High Representative of the Union for Foreign Affairs and Security Policy, shall adopt a decision suspending application of an agreement and establishing the positions to be adopted on the Union's behalf in a body set up by an agreement, when that body is called upon to adopt acts having legal effects, with the exception of acts supplementing or amending the institutional framework of the agreement. 10. The European Parliament shall be immediately and fully informed at all stages of the procedure. 11. A Member State, the European Parliament, the Council or the Commission may obtain the opinion of the Court of Justice as to whether an agreement envisaged is compatible with the Treaties. Where the opinion of the Court is adverse, the agreement envisaged may not enter into force unless it is amended or the Treaties are revised.
The role of the Institutions The withdrawal procedure is not entirely clear in the Treaties. Different vision came from the Commission and the Council. Article 50 TEU never refers specifically to the Commission in its text, quoting instead a lot of time the Council. The only reference gives by Article 50 TEU is the accordance to 218(3) TFEU, describing the negotiation process with a Third Country. Under its provision the Council shall authorise the opening of negotiations, adopt negotiating directives, authorise the signing of agreements and conclude them. The Commission negotiates agreements with Third Countries on behalf of the EU, but Article 218(3) TFEU, but leaves it open for the Council to nominate a different negotiator or committee. However as specified, Article 218 TFEU refers to negotiation with Third Countries. Based on this legal vacuum, the Council’s legal position is that the UK would be a Member of the EU at the time of the divorce talks, not a “Third State” that would usually be dealt with by the Commission, as for example in talks on joining the Union. Therefore, the Article 218 TFEU does not apply. Following that logic, the Council together with the Member States believe the Council is the the appropriate Institution for these negotiations, so it should lead it directly. While the Council’s position is that the divorce is a special case that needs special rules, the Commission’s legal service disagrees. The compromise (reached with an interistitutional agreement) is the creation of Troika formed by negotiatiors (and his task force) from Council, Parliament and Commission, with the Commission one being the chief negotiator. A particular interpretation of the negotiations cames form the chief of DG
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TRADE. In July, Ms Malmström considered “There are actually two negotiations. First you exit, and then you negotiate the new relationship, whatever that is”. She was suggesting that a first negotiation would come on the only provision of exit. Where upon the UK would become a “Third Country”, the EU could negotiate in the ordinary way the trade agreement under Article 218314. In between, the trade between the EU and the UK should be conducted under WTO rules. This interpretation is not shared by the European Institution Precidency, as Article 50(2) TEU clearly highlights that the new agreement should take into account the framework for its future relationship. Before concluding the agreement, the Council would need to obtain the European Parliament's consent (Article 50(2) TEU). It should be noted that whilst, under Article 50(4) TEU, the member of the European Council or of the Council representing the withdrawing Member State does not participate in the discussions of the two Institutions or in decisions concerning the withdrawal. No similar provision exists for Members of the European Parliament (MEPs) elected in the withdrawing Member State. This has led some to conclude that the Treaties therefore do not prevent MEPs elected in the Member State in question from participating either in debates in the Parliament and in its committees. In theory,
314
EU commissioner says Brexit negotiation must precede trade talks the Guardian 1 July 2016.
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they could only vote Parliament's motion to approve the withdrawal agreement. This is because the role of MEP should represent the Union's citizens as a whole and not only those of the Member State in which they were elected. The
Council
decides
to Procedure of Article 50 TEU
conclude the agreement with a 'super
qualified
majority',
without the participation of the State concerned. The qualified majority is defined in this case as at least 72% of the members of the Council, comprising at least 65% of the population of the Member States (Article 238(3) b TFEU).
Ratification by Member States Unlike the accession of new Member States to the EU, the withdrawal of a Member State does not require ratification by the remaining Member States. Article Source: Europe External Policy Advisiors
50(1)
TEU
mentions
(in
a
declaratory way) only the decision of the withdrawing state, in accordance with its constitutional requirements. However, as any Treaty changes or international agreements (such as a free trade agreement) would be necessary a ratification by the remaining Member States in accordance with Article 48 TEU. This provision, however, is not clear and will need further discussion. At the very least, Article 52 TEU on the territorial scope of the Treaties, which lists the Member States, would need to be amended, and Protocols concerning the withdrawing Member State revised or repealed so again (and this time without uncertitude) it will apply Article 48 TEU. Therefore, the Article 50 TEU must be read in sinergy with Article 48
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TEU.
The role of the Court of Justice Again unlike accession treaties, the withdrawal agreement is not primary EU law, since it is concluded between the EU and the withdrawing state and not between the latter and the rest of the Member States. It is an international agreement and therefore subject to judicial review by the Court of Justice of the EU (CJEU). The Council decision to conclude the agreement could, for instance, be challenged through an action for annulment (Article 263 TFEU). Furthermore, someone argued for the possibility that the CJEU be requested to deliver an opinion on the draft withdrawal agreement's compatibility with EU law (Article 218(11) TFEU), whereas others maintain that since Article 50 TEU refers only to Article 218(3) TFEU, this would not be possible. The domestic courts of the remaining Member States would be able to refer questions regarding the withdrawal agreement for preliminary ruling to the CJEU, whereas for the courts of the withdrawing state to have the same power. This would need to be expressly included in the withdrawal agreement. Some others have proposed the use of the Article 50 TEU procedure to force a renegotiation of a Member State's membership of the EU. In this context, the question could be posed as to whether “a Memeber State has notified the European Council of its intention to withdraw from the EU, and a withdrawal agreement has been negotiated.”.
Consequences of a withdrawal Under Article 50(3) TEU, the legal consequence of a withdrawal from the EU is the end of the application of the Treaties and the Protocols. EU law ceases to apply in the state concerned, although any national acts adopted in implementation or transposition of EU law would remain valid until the national authorities decide to amend or repeal them. A withdrawal agreement would need to address the phasing-out of EU financial programmes and other EU norms. Experts agree that, in order to replace the EU law, specifically in any field of exclusive EU competence,
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the withdrawing State would need to enact substantial new legislation. The new UK PM has already pulled out the idea of a Great Repair bill, which will transpose all the EU legislation in national one. In addition, the rights and obligations coming from the Treaties would be extinguished, at least to the extent agreed between the EU and the withdrawing state. As well as agreements between the EU and third countries or international organisations (for example on trade) would also cease to apply to the withdrawing state, and it would thus need to negotiate alternative arrangements.
Transitional provisions on acquired rights The arrangements for the withdrawal could aim at attenuating its consequences, including transitional application of some EU legislation in the withdrawing state, so to protect any individual subjective rights based on them. As regards the rights deriving from EU citizenship, some scholars have argued that EU citizenship can stand alone, detached from the nationality of a Member State, so that the nationals of the state in question would keep their Union citizenship even after its withdrawal from the EU. This reasoning is based on the assumption that some of the nationals of a withdrawing state would lose their Union citizenship involuntarily in the case of withdrawal. This view however is not shared by the vast majority in literature, which regards EU citizenship as 'additional' to a MemberState's nationality (Article 20(1) TFEU) and without a free-standing character. Moreover, it should be noted that the decision to withdraw from the EU is taken according to the constitutional requirements of the state concerned and thus taking into account all possible consequences, including for the individual citizens of the withdrawing state. Furthermore, some commentators believe that any contractbased rights would persist so long as the contracts remain valid, although it could be expected that the withdrawal agreement would address such issues, in order to guarantee legal certainty. In this context, the agreement could also seek to address the status of the withdrawing state's citizens working (or having worked) for EU institutions.
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According to Article 28(a) of the EU Staff Regulations' an official may be appointed only on condition that: he has a nationality of one of the Member States of the Union, unless an exception is authorised by the appointing authority, and enjoys his full rights as a citizen (the same applies to contractual staff). According to the Staff Regulations, an official may be required to resign where he ceases to fulfil the conditions laid down in Article 28(a), which includes the nationality requirement (Article 49 of the Staff Regulation).
Institutional changes Taking into account any arrangements made in the agreement between the EU and the withdrawing state as to their future relationship, the EU Treaties remain valid for the rest of the Member States and any amendments required as a consequence of the withdrawal would need to be made in accordance with the procedures established in Article 48 TEU. The composition of the EU institutions could be expected to change as of the day the withdrawal takes effect, with members from the withdrawing state losing their seats in the various institutions and bodies, although transitional arrangements might be required for the period immediately after that date. The regular renewal of membership of one or more institutions would of course be complicated if this fell due during an ongoing Article 50 TEU process. As regards the European Parliament, since Article 14(2) TEU sets only the maximum number of MEPs, the size of the EP could simply be reduced by the number of MEPs previously attributed to the withdrawing Member State. The seats of the state in question could be redistributed among the remaining Member States, either immediately or following the next election, although the maximum 96 seats allocated to any one Member State (reached only by Germany at present) could not be exceeded without a change of Article 14(2) TEU. The decision establishing the composition of the EP, including the distribution of the seats among the Member States, is adopted by the European Council on the initiative of the EP and with its consent (Article 14(2) TEU). As with the other aspects mentioned above, this could
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be dealt with within a withdrawal agreement.
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Chapter V – The current situation 1. A new Government for the UK 2. The division inside the EU
Introduction After the vote the main leaders of both Leave and Remain Campaigns stepped back, leaving UK in a limbo of uncertitude. The referendum (not legally binding) will really lead to the Brexit, or the new leaders will find a way out? The Socialists were already planning a legal challenge to Brexit and a new referendum to ratify the leave agreement. In the meanwhile, the possibility of new world economic crisis started to be raised by the drop of the Pound315. The days after the leave were signed by the uncertainty. In London a lack of leadership paralyzed the British politic. Instead the European leaders were occupied blaming both Cameron and Junker for their attitude, scocked by an unexpected result. Arrived unprepared to the referendum both the EU and the UK lacked of a strategy. This Chapter gives an overview of the following three months after the vote. Having the time to digest the new situation the leaders developed their strategies for the forecoming negotiations (or they shoud have done so).
315
The post-Brexit pound – how sterling's fall affects you and the UK economy, The Guardian, 19 August 2016.
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“I want to talk to you about the Government’s vision of Britain after Brexit, our vision of a truly Global Britain” Theresa May, 2 October 2016
1. A new Government for the UK The lack of leadership in the UK ended at the bigining of July. Theresa May, won the election as leader of the Conservative Party, having defeated the other candidates: Andrea Leadsom, Michael Gove, Stephen Crabb and Liam Fox. She won the first ballot of Conservative MPs on 5th July by a significant margin, and two days later won the votes of 199 MPs, going forward to face a vote of Conservative Party members in a contest with Andrea Leadsom. Leadsom's withdrawal from the election on 11 July led to May's appointment as leader the same day. The Queen on 13th July 2016, appointed her also as Prime Mininster316. Although Theresa May was on the losing side of the Brexit referendum, backing Cameron's call for Britain to remain in the European Union, she is now in charge of implementing the country's withdrawal. She has managed to convince her party’s Euroskeptic MPs, committing to finalize Brexit, as testified by her statement ‘Brexit means Brexit’, whereby she presented herself as PM317. In part, helped by her influential chief of staff Nick Timothy, a committed Brexiter who holds Brussels, and especially Jean-Claude Juncker in disdain. She is the second woman in the job, following in the steps of the fellow Conservative Margaret Thatcher. A male Conservatives grandee, who served under the "Iron Lady" in her decade-long political life and supports May was last weekcaught,
316
Theresa May: 'Bloody Difficult Woman' Is New UK Prime Minister, NBC, 13 July 2016. Theresa May says 'Brexit means Brexit' and there will be no attempt to remain inside EU Conservative, Indipendent, 11 July 2016. 317
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described Mrs. May as a "bloody difficult woman". The unguarded comment likely endeared May to grassroots party members who fondly recall Thatcher's headstrong and stubborn approach to leadership.318 She was the sixth person to hold the post in as many years while she recently became the longest-serving individual in the role since 1892. She battled rebellious police chiefs in 2014, defied ministerial colleagues over the European Convention on Human Rights and risked a rift with Washington when she refused to extradite British computer expert Gary Mackinnon, who hacked U.S. Government computers, including the Pentagon.319 Theresa May promised workers representation on company boards while shareholders vote on executive pay deals will be made binding every year. In addition, she has backed same sex marriage while in 2012 she stated personally that the legal limit on abortion should be lowered from 24 to 20 weeks. Along with most Conservative MPs she voted against an outright ban on foxhunting.320 Theresa May revealed her idea of Brexit in the opening speech at the Conservative Party Convention on 3rd October 2016 (which will be better described in the next paraghraph). Outlining her intention to pursue Article 50 TEU next march 2017, she also confirmed the UK will leave the EU, opposing to those who argued the referendum was not binding.321
The Theresa May’s Cabinet In her new government, Ms May named in keys positions ‘Brexit’ supporters. However, her Government include more ‘Remainers than Leavers. In fact, there are 16 cabinet members, including Mrs. May, who backed Remain, and seven who campaigned for Brexit.322 In detail, Boris Johnson is now Foreign Secretary while Philip Hammond was made Chancellor. Eurosceptic David Davis, will be in charge of negotiating Britain's exit from the European Union, in a newly created post of Brexit Secretary. Liam Fox was appointed as the new international Trade Secretary.
318
Britain's new PM May gives Johnson big job, says needs time before Brexit talks, Reuters, 14 July 2016. Theresa May: 'Bloody Difficult Woman' Is New UK Prime Minister, 13 July 2016. 320 Who is Theresa May: A profile of UK's new prime minister, BBC, 25 July 2016. 321 Full transcript: Theresa May’s first speech as Britain’s prime minister, The Washington Post; 13 July, 2013. 322 Theresa May shakes up government with new-look cabinet, BBC, 14 July 2016. 319
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Amber Rudd took over Mrs. May's former role as Home Secretary. Liz Truss is now Justice Secretary, Justine Greening takes Education and Andrea Leadsom has been promoted to Environment Secretary. Just four cabinet positions have stayed in the same hands: Michael Fallon as Defence Secretary, Jeremy Hunt as Health Secretary, Alun Cairns as Welsh Secretary and David Mundell as Scottish Secretary. Out of the new Government remained several important actor of the conservatives like: George Osborne, Michael Gove, John Whittingdale, Nicky Morgan and Oliver Letwin. Theresa May’s Cabinet Boris Johnson - Foreign Secretary The former London Mayor was a surprise appointment as Foreign Secretary. After having decided not running as
PM,
the leader of
the Brexit campaign has come out on top. Showing once again his political trasformism and opportunism. Ms May probably chose Johnson as chief of Britain’s diplomatic relations both because of his status of Conservatives Eurosheptic leader and his poker face, to use during the negotiations. But this is a hazardous move considering the background
of
Johnson,
which
includes several gaffs and unhappy speeches323. Indeed, Johnson did not hesitate to show immediately his attitude, saying UK “will help Turkey
Source: BBC
323
Nick Clegg described him last year as "like Donald Trump with a thesaurus" and Mrs. May mocked him over his decision to buy water cannon for London. He called black people “flag-waving piccaninnies” with "watermelon smiles", picked on Barack Obama's "part-Kenyan" heritage and floored a schoolboy in Japan is now charge of Britain’s diplomatic relations. Who is in Theresa May's new Cabinet? Full line-up after Tory Prime Minister's bombshell reshuffle.
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in any way” to join the EU324, during an official visit to Ankara, after having campaign to leave the EU and used the possibility of an Islamic invasion to support it. However, this is not a new issue for Johnson, who used to campaign for Turkey to join the EU already in the 2006: “I believe our generation has a historic chance… to build a bridge between the Islamic and the Christian worlds,” he said325. Currently, his role during Brexit is unclear, having David Devis a dedicated Secretary and Liam Fox the Trade Secretary. His position is baldly in favour of a fast and hard Brexit, but Mr. Johnson can always come with a ‘coupe de teatre’, changing his view, even on this subject.
David Davis - Brexit Secretary The ex-leadership contender was promoted from the backbenches to the new job of Brexit Secretary, despite campaigning against Mrs. May. Davis has been Conservatives MP since the 1987326 covering high positions and for two years the leadership of the party. From November 2003 to June 2008, David was the Shadow Home Secretary, but in the 2010, after general election which resulted in a hung parliament, he refused the call of David Cameron to be part of his cabinet. Cameron wanted to include Davis and other right-wingers such as Michael Howard and Iain Duncan Smith into his Conservative-Liberal Democrat coalition. However, Davis refused and remained a critic of the government, making severe speeches against its politics. The most famous action against the Cameron’s Government was his contribution to the Conservative Woman, a based political website started in 2014 to provide a new voice for social conservatism, criticizing the George Osborne's budget of 2014327. About Brexit, Mr. Davis hoped the UK could maintain close relationship with the EU in the security, as Britain’s intelligence and military capabilities are one of the key assets in the negotiation. But his position over the Single Market is clear, 324
Boris Johnson: UK will help Turkey join the EU, Politico 27 september 2016. Boris Johnson Used To Campaign For Turkey To Join The European Union, BuzzFeedNews 9 March 2016. 326 Davis was Member of Parliament for Boothferry from 1987 until 1997. Since 1997, he has served as MP for Haltemprice and Howden. David Davis The conservatives’ website. 327 David Davis MP: End the bias against one-earner families. Make the £10,500 tax allowance fully transferable The Conservative Woman. Retrieved 3 February 2015. 325
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he does not want paying anything or conceding anything on border controls to get a free trade deal with the EU. This suggested that he agreed with Liam Fox, the Secretary of State for International Trade, that the UK should leave the customs union so itwould have a free hands to make its own trade deals. However, he is backing the UK to have more than a trade relationship with the EU after Brexit. Davis also refused the hipothesis advocated by the Socialist to hold a new referendum on the final deal with EU, as well as the possibility of a Scottish and Irish new independence referendum. Critics said his position is out of power, as it will be directly Theresa May to take the decisions, chairing the all-important Cabinet committee on Brexit. Moreover, as the intention is to make a trade deal with EU and from this will depends all the international future of the UK, would be more appropriate to give the duty to the Trade Secreatry.
Liam Fox – Secretary of Interantional Trade Liam
Fox
has
been
Member
of
Parliament
(MP)
for
North
Somerset since 1992 and was Secretary of State for Defence from 2010 to 2011, under the first Cameron Government. He resigned on 14 October 2011 over allegations that he had given a close friend, lobbyist Adam Werritty, inappropriate access to the Ministry of Defence and allowed him to join official trips overseas. Mr. Fox came fifth out and so last in the leadership contest Mrs. May won, losing again
the
leadership
challenge
after
the
2005328.
Upon Theresa
May becoming Prime Minister of the United Kingdom in July 2016, Fox was appointed Secretary of State for International Trade and President of the Board of Trade329, with the task to secure trade deals with other countries following Brexit. During the referendum campaign, Mr. Fox hardly supported the leave, even if he was not so trumpery as Davis or Johnson, serving as a vice-president of the eurosceptic pressure group Conservatives for Britain. He is considered to be
328
In September 2005, Fox announced he would join the contest to be the next leader of the Conservative party arriving third. The President of the Board of Trade is head of the Board of Trade. This is a committee of the Privy Council of the United Kingdom, first established as a temporary committee of inquiry in the 17th century that evolved gradually into a government department with a diverse range of functions. Olson, Alison G. "The Board of Trade and Colonial Virginia". Encyclopedia Virginia. 329
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staunchly Eurosceptic and opposed to European defence integration (specifically against the defence provisions in the Lisbon Treaty) as well as European political integration. His thought can be summed up by his speech in March 2016; ‘I’m a Eurosceptic, because I believe that this nation state should be able to govern itself and control its own borders without interference from authorities outside our borders…. We didn’t get control of our own law-making and achieved no treaty change. The European Court still has the final say on our laws so we cannot escape from the concept of ever closer union. We didn’t ask for any change to the free movement of people and so we will continue to have mass migration from the European Union as the British economy continues to grow, while Europe stagnates.’330
Continuing
with
a
strong
opposition
to
the European
Commission foreseen a domino effect in EU after Brexit, unless Eurocrats change their ways, listening to the unsatisfied people331. As International Trade Secreatary he also predicted the UK would have a new golden age, thanks to the free trade agreements. Which is also May’s point of view, in fact, she created the new Department for International Trade, which takes on some responsibilities from the department for Business, Innovation, and Skill (now abolished). In a speech in Manchester332, Mr. Fox said ‘As a newly independent WTO member outside the EU, we will continue to fight for trade liberalisation… I believe the UK is in a prime position to become a world leader in free trade because of the brave and historic decision of the British people to leave the European Union’. He believes in a post-Brexit Britain to be a full independent member of the World Trade Organisation. A clear signal that he is refusing the idea of a soft Brexit, involving the UK membership of the EU Single Market or customs union. However, he wants it to have a free trade environment with European economies, at least as free as it is now. Believing the UK can reach this target because anything
330
Liam Fox speech at Friday 4th March 2016 at Scottish Conservative Conference 2016 Embracing The Future EU'VE BEEN WARNED Liam Fox warns Brexit could spark a “domino effect” across the EU unless bureaucrats change their ways, the Sun, 3rd October 2016 332 Liam Fox predicts free EU trade post-Brexit BBC 29 September 2016. 331
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else “would harm the people of Europe”333. Commenting his appointment Nick Clegg, former LibDem Leader, moked him, saing ‘He doesn’t have a job and he doesn’t appear to have realised that yet’334. Arguing the UK make most of its trade with EU and in case of a custum union the Commission will continue to be in charge of the international trade. However since the UK is inside the European Union it cannot sign any kind of FTA with other countries.
Priti Patel – Secretary of Development Patel was born in London to a Ugandan Indian migrant family, she entered in the UK Parliament at the 2010 general election, sponsored directly by Cameron. She was drafted into the Number 10 Policy Unit in October 2013335 and was promoted as Exchequer Secretary to the Osbourne Treasury team336, thanks to her support of the death penalty and her right-wing views. In the general election of May 2015 Patel retained her parliamentary seats fter the election, raising to Cabinetlevel as Minister of State for Employment in the Department for Work and Pensions337. Her support for Brexit belong to her first moves in politics, being involved initially with the Referendum Party338, before switching to the Conservatives. Following the referendum announcement, Patel was widely used as a likely "poster girl" for the Vote Leave campaign339. Claiming that the EU is "undemocratic and interferes too much in our daily lives", Patel publicly stated that immigration from elsewhere in the EU was overstretching the resources of UK schools, launching also the ‘Women For Britain’ campaign340. Fox, speaking at a fringe event, said the government would “like to be able to give a reassurance to EU nationals in the UK, but that depends on reciprocation by other countries”.Liam Fox: EU nationals in UK one of 'main cards' in Brexit negotiations Guardian 4 october 2016 334 Clegg aslo said: ‘He genuinely doesn’t have a job. If the United Kingdom doesn’t leave the customs union then he is heading a department without purpose because he cannot negotiate all these apparently magnificent trade deals with Papua New Guinea and Tanzania. Only 15 per cent of British trade goes to countries outside the EU.’ Liam Fox doesn’t have a job – he just doesn’t know it yet, says Nick Clegg The Spectator 13 September 2016 335 "New Number 10 policy board announced". The Spectator. 15 October 2013. Retrieved 15 July 2014. 336 "Priti Patel MP: Who is the new Treasury minister who supports death penalty and rejects plain packaging for cigarettes?". The Independent. 15 July 2014. Retrieved15 July 2014. 337 "Priti Patel appointed as Employment Minister". ITV News. 338 Which claimed for a referendum in the Lisbon process. 339 "Priti Patel: Who is the top Tory right-winger tipped to be the face of the Brexit campaign?". International Business Times. 9 February 2016 340 "Priti Patel warns of EU migration threat to UK class sizes". The Guardian. 21 June 2016. 333
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Patel openly supported Theresa May during the PM run, claiming that she had the "strength and experience" for the job, while arguing that May's main challenger Andrea Leadsom "would prove too divisive to win a general election"341. Therefore, after Mrs. May’s win, she was appointed International Development Secretary. Patel clarify her intention to support UK trade deal with the international aid. Already in 2013 she suggested the Department for International Development should be replaced with a Department for International Trade and Development. Arguing that the UK should focus on enhancing trade with the developing world and seek out new investment opportunities in the global race. On taking the position, Patel stated that "too much UK aid was wasted or spent inappropriately", declaring that she would accomplish international development through trade as opposed to aid342. The Thatcher’s fan put on the grounds her pragmatic approach at her firs occasion, submitting a "performance agreements"343 to the UK £1.1 billion contribute to a global aid fund used to combat malaria, tuberculosis, and HIV/AIDS in Africa. Patel also declared "the £11billion spent abroad should now be used to encourage countries to strike lucrative agreements with Britain". Remarking that already 27 countries, including a large number which receive aid from the UK, have expressed an interest in having a trade deal with Britain344. Again critics argued that her ministery has no power and should be linked to the Trade one.
The Brexit Commitee The “European Union Exit and Trade Committee” is formed by the four Leavers, together with Transport Secretary Chris Grayling and Environment Secretary Andrea Leadsom also prominent members of the Leave campaign. However, alongside the prime minister, who chairs the committee, are also named the Chancellor Philip Hammond, the Business Secretary Greg Clark, and the Home
341
"Priti Patel: Andrea Leadsom could become a Tory Corbyn". The Telegraph. 9 July 2016. "The new International Development Secretary wanted to scrap what is now her department". The Independent. 14 July 2016 343 Meaning that the UK government could reduce aid by 10% if specific criteria were not met by the recipient country. "Britain will withhold foreign aid money if performance countries' targets are not met". The Telegraph 18 September 2016 344 Priti Patel ready to use £11BN foreign aid to build host of historic trade deals, the Express, 1 august 2016 342
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Secretary Amber Rudd (who aready chanded its position lining up with eurosheptics). Mrs. May has also given a spot to her long-time friend and ally Damian Green, the Work and Pensions Secretary, and Conservative Party Chairman Patrick McLoughlin, who sits in the cabinet as the Chancellor of the Duchy of Lancaster. Both of them supported a vote to remain being also in favour of a soft exit from the EU. In a controversial move, the Secretaries of state for Scotland, Wales and Northern Ireland are not given permanent positions around the decision-making table. This reveals one again the upcoming issue of a possible secession of Scotalnd Negotiation of the UK withdrawal – British side Scheme
345
and Northern Ireland346, whose Government is evaluating this possibility in the
upcoming months. However, Mrs. May said she will work closely with the UK Member States Government. 345
First Minister Nicola Sturgeon said at the SNP annual party conference she will publish a draft bill for a second Scottish independence referendum next week, after warning Theresa May she must respect the 62 percent of Scots who opposed Brexit. Sturgeon warns May: Pursue ‘hard Brexit’ and Scotland could leave UK Plitico 13 October. 346 Deputy First Minister Martin McGuinness called for a "short, intensive dialogue" but said he was sceptical that Downing Street would react positively to his latest intervention. McGuinness berates British government over lack of legacy engagement The Irish Time 8 October 2016.
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The cabinet committee has met at least three times already, a senior Government aide said, but the details of its discussions and membership have been kept closely under wraps. The first meeting was on July 26. According to the Cabinet Office manual347, which sets out the rules of Government “cabinet committee decisions have the same authority as cabinet decisions.” Mrs. May’s decision to use a cabinet committee which is at least half the size of a normal full cabinet to run Brexit suggests she intends to control the process tightly. The committee’s remit includes overseeing Britain’s negotiations with the EU and formulating wider trade policy.
A Brexit by Brexiter? Mrs. May surprisingly appointed four “Leavers” in the main position of her government. But more surprisingly other secretaries and Mrs. May herself turned their position as Leavers one. For instance, Amber Rudd, the Home Secretary, declared the immigration would be minimised to just tens of thousands of people a year in order to respect the “clear message” of what British people wanted from the Brexit referendum. She said she would “ensure people coming here are filling gaps in the labour market, not taking jobs British people could do”. Amber Rudd made a connection between Brexit and the fight against crime saying that “we will make it easier to deport EU criminals, aligning their fortunes more closely with those from outside the EU … For the first time, we will deport EU nationals that repeatedly commit so-called minor crimes in this country”. Another example is Jeremy Hunt, the Health Secretary, who pledged to reduce the number of foreign workers in the National Health Service by training 1,500 more British doctors each year. However, all those who are EU-nationals working within the UK will be welcome to stay post-Brexit, he said.348 Understand this picture is very difficult: some Tories saw it as a brilliant move to let the Brexiters sort out their own mess, others viewed it as a clever insurance policy: if the negotiations with the EU go badly, the Brexiters would get the blame. On the other side, it seems May changed the direction of the Conservatives Party, 347 348
Theresa May’s Brexit war cabinet Politico 14 Septamber 2016. British ministers take aim at EU migrants EUObserver, 5 October 2016.
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fully embracing the euroscepticism; others arrived to say the Conservatives have now become the UKIP349: having the intention to pursue a hard Brexit, which Mrs. May have considered insane at the beginning of the campaign. Indeed, at the same time, the UKIP, which touched its highest popularity during the referendum, is now in trouble, having lost its new leader Diane James just after 18 days350. All these theories are wide of the mark. However, it seems difficult that Mrs. May has change her idea over the effect of Brexit and on her personal position on it. The Prime Minister is certainly not enjoying a honeymoon with the hard-line Brexiters and the Tory backbenches. About 30 Tory Europhobes could make life very difficult for May, given that her Commons majority is just 12. Ardent Eurosceptic suspect that May and Hammond want “Brexit-lite” (a Soft-Brexit), and so are demanding a “hard Brexit”. They argue that the public voted to leave the Single Market and end EU migration, and worry about May’s talk of securing “some controls” over migration. Their anger is premature, since May had no time to make the crucial judgement on the trade-off between Single Market access and being able to limit EU migration. She said that she has an “open mind” about the UK’s trading relationship with the EU. Frictions inside the Government already went public, as Chancellor Philip Hammond has accused the Brexit Minister David Davis of threatening to wreck the UK’s exit from the EU by antagonising Angela Merkel and cutting all ties with Brussels. Mr. Hammond revealed, he believes Mr. Davis should be banned from negotiations with the EU and forced to stay at Westminster to stop him meddling351. In the view of this author, the new Prime Minister is using all her pragmatism to handle a difficult situation and, in her words, “make a success of it”. Indeed, Mrs. May understood the negotiation with the EU are going to long exhausting. Internally, the UK is divided and the EU is not selling the access to the single market
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The Tories have finally become Ukip, Politics CO UK, 5 October 2016. Stepping back James said: “It has become clear I do not have sufficient authority, nor the full support of MEP colleagues and party officers to implement the changes I believe are necessary and upon which I based my campaign.” Diane James resigns as Ukip leader after only 18 days in role the Guardian, 5 october 2016. 351 Chancellor Hammond fears the 'bull in a China shop' behaviour of the 3 Brexiteers Davis, Boris and Fox will wreck the UK's exit from the EU Mail Online 8 October 2016. 350
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without freedom of movement. Besides, Mrs. May pushed the four brexiters to the forefront, tring to propose the idea of a ‘happy’ hard Brexit through their popularity. The aim is both raising the consent of the Tories (pressed by internal quarrels and challeges by the opposition) and making digest the possibility of hard Brexit to citizens. Moreover, she is trying to use their poker face to scare the EU counterpart, betting on the economical dependency of the EU from the UK. Despite she assigned all the most Brexit relevant ministeries to Leavers, Mrs. May will have the last word, chairing all the important Cabinet committee on Brexit. This seems more a political game controlled by Mrs. May than an abdication in favour of the Brexiters. This view was confirmed during the Conservative Conference of the beginning of October. In that occasion, Theresa May outlined her vision of Brexit, remarking exactly the idea of pursuing Brexit, because the referendum result was clear, and take Brexit as a big opportunity to create a Global Britain352.
The timing First, Mrs. May confirmed the use of the Article 50 TEU, so neither the Article 48 TEU nor a unilateral withdrawal, but a leave in the way agreed in law by Britain and other EU Member States. She also confirmed the timing, which will be March 2017, for the necessity to clearly understand the economical implication353 and hire the negotiators and experts354. ‘We will invoke it when we are ready. And we will be ready soon. We will invoke Article Fifty no later than the end of March next year’, she declared.
The process In Mrs. May’s intention will be the Government to invoke the Article 50 TEU not the House of Commons, nor the House of Lords. This because in the referendum 352
Read in full: Theresa May's Conservative conference speech on Brexit, Politics Home 2 October 2016. The European Union Committee and its six sub-committees started their co-ordinated series of inquiries into the key issues that will arise in the forthcoming negotiations on Brexit. EU Committees Brexit inquiries update, 7 October 2016 UK Parliament. 354 Government is hunting an extra 250 trade experts to lead Brexit negotiations. The UK Government recruiting Brexit experts to lead negotiations. 17 July 2016. 353
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act, the Parliament putted the decision to leave or remain inside the EU in the hands of the people, which have expressed their will. Therefore the interpretation of May, but also before of Cameron, is that it is now a Government duty to pursue it. This plan is in contrast with the vision of several MP, especially the Labourist, who argue that an agreement has to pass in both Houses of Parliament before. Mrs. May is afraid that the Remainers will obstacle the governments plan, so she already spoke with the Attorney General, Jeremy Wright, to ask him to resist them in the courts. Futhermore, Mrs. May highlighted the full responsibility and ability of the UK Government to negotiate Brexit with the EU, avoiding the possibility to involve other entity as the administrations of Scotland, Wales and Northern Ireland. Which, however, will be consulted as business and municipal leaders across the land. But it would be a job of the Government she declared. This means also that Brexit will involve all the UK nations, without possibility of an opt-out. This will crash with the declared intentions of Scotland and Northern Ireland, which already declared their intention to leave the UK to remain in the EU.
The Great Repeal Bill If for the migrations and trade the uncertainty is still the only certainty, on the legislative side the UK Government will rule a legislative act, so called Great Repeal Bill, which will annul the 1972 European Communities Act (ECA)355. It will also give Parliament the power to absorb EU legislation into UK law, scraping elements it does not want to keep. For instance, to amend, repeal and improve any current EU law before or after its transposition. The Bill, which will be introduced in the next Queen’s speech in May 2017, will make the ECA no longer apply from the date upon which UK formally leave the European Union. For that moment: ‘all laws will be made not in Brussels but in Westminster, the judges interpreting those laws will sit not in Luxembourg but in courts in this country and the authority of EU law in Britain will end’. By converting the acquis into British law, the UK
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European Communities Act in 1972 is an act passed by the UK Parliament, which gave instant effect to EU law. This means if there is a clash between an act of UK Parliament and EU Law, EU law will always suceed. The ECJ interprets EU law with judgments that were binding on all member states.
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Government also wants to give citizens businesses and workers legal certainty, making the same rules and laws apply after Brexit as they did before.
The vision for Britain after Brexit More importat than the process is the outcome, and Theresa May foresees a truly ‘Global Britain’. This Global Britain will be as first totally out of the EU (as voters decided even after the renotiations mabe by Cameron) ‘becoming a fullyindependent, sovereign country, no longer part of a political union with supranational institutions that can override national parliaments and courts’ she said.. Therefore, the process of negotiation will establish a new kind relationship between EU and UK. Fist, Mrs. May outlined what this agreement will not: (i) not a “Norway model” or a (ii) “Switzerland model”, so not inside the EFTA, because it will arm UK sovregnity. It will also not be a (iii) “trade-off” agreement, which rules on immigration and trading with Europe, because againg UK wants to keep ontrol immigration and be free to pass own laws. After Mrs. May dictated her condition for the agreement, which should reflect a cooperative relationship (i) on law enforcement and (ii) counter-terrorism. This agreement will involve (iii) free trade deal, in goods and services, giving full access to the European Single Market. However, Mrs. May (iv) excluded the inclusion of free movement of people as well as the jurisdiction of the ECJ on the UK law. ‘This is going to be a deal that works for Britain’ she stated, avoiding to answer on how it is going to work for the European Union Member States.
Free Trade Agreements In the mind of the UK Government being in a sort of close agreement with the EU will close the possibility to open new trade deals. Instead, the Mrs. May wants to replace the loss caused by the end of the EU membership, opening new markets. This idea is clearly exposed in her declaration ‘let’s ignore the pessimists, let’s have the confidence in ourselves to go out into the world, securing trade deals, winning contracts, generating wealth and creating jobs’. Countries including
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Canada, China, India, Mexico, Singapore and South Korea have already outcome their intention to establish FTA’s with the UK. Moreover, Mrs. May declared she has already agreed to start discussions with Australia and New Zealand and more than other 20 countries. Concluding the commitment of Theresa May is to pursue a so called Hard Brexit, with a UK completely out the EU and free to make FTAs with the rest of the world. However, this is exactly the idea she refused before the campaign, considering the EU access to the Single Market as impertative for the British economy. Mrs. May is convinced to gather a full access to the Single Market without respecting EU rules and without allowing the immigration from the EU. Nothing more far from what the EU (as described in the next Paragraph). Morevoer she believes she can easily make trade agreement with the rest of the world, without taking into account the time and the complexity of the negotiations, as well as the will of all these countries (as explained in the next Chapeter). Finally, she cannot ignore the calls for independence of Scotalnd and North Ireland and the claims of more involvement of the UK Parliament. At this point she already makes a backstep, allowing MPs to vote on her strategy for taking Britain out of the European Union, being however a mere consultive vote, so not binding for the Government.356
It’s not clear what form the proposed scrutiny of the government’s Brexit strategy will take, nor when it will come. But any debate in Parliament requires a motion to be tabled, and any motion is subject to a vote. Labour’s Foreign Affairs spokeswoman Emily Thornberry confirmed that she wanted Parliament to take a view on May’s negotiating position. “We want to have proper scrutiny, and proper scrutiny means a vote,” she told. The motion from the opposition Labour Party was also backed by by some lawmakers from May’s own Conservative Party, thus May tabled an amendment late on Tuesday that effectively accepted the motion, and instead asked that her government should be given as much space as possible to work. May Backs Down to Allow Parliament Vote on Her Brexit Terms. Bloomerg 12 October 2016. 356
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“ A vote to Leave would be the beginning of the end of the European Union” Jean Claude Junker, 2016
2. The divisions inside the EU On the other side of the Chanel, the rest of the European Union was astonished by the vote. In the immediate aftermath, Mr. Juncker faced calls to resign being branded a “negative symbol” of the EU and seeing himself blamed for the result. But both Mr. Juncker and Mr. Schulz have dismissed this claims, remarking they have no fault for the UK’s decision to leave the EU. ‘Here in Brussels, we did everything to accommodate David Cameron's concerns. My collaborators and I personally spent countless days and nights negotiating an agreement that was fair toward the United Kingdom and toward the other 27 Member States. I was then very surprised to see that this settlement played no role whatsoever in the campaign in the United Kingdom. At the same time, it is hardly surprising. If someone complains about Europe from Monday to Saturday, then nobody is going to believe him on Sunday when he says he is a convinced European.’ declared Mr. Junker to the german newspaper Bild. Indeed, the efforts of the European Union concentrated on the negotiations of a new membership, which has been perceived by the British citizens as another attempt to the UK sovereignty. The same critics were moved by all the national leaders, asking again the European Institutions to change357. The necessity of a new direction for Europe is tangible to avoid the disaggregation of the Union. However, a lack of leadership seems to an unsolvable problem in Europe. Several different plans have been presented in the past month
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The claims for change the EU started during the Monetary Crisis, against the austerity and lack of democracy of the European Institutions.
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to address the European issues; Merkel358, Renzi359 and Holland360; which also made a moked cruise to Ventottente361 (the island where Altiero Spinelli wrote The "For a Free and United Europe. A draft manifesto" in 1941362) to discuss about the future of the Union. Recently also Tsipras presented a new plan launching officialy an EU Mediterranean Alliance363 (already discussed right after Brexit364). However, a lack of agreement seems to make all this proposals fall in disgrace. More on the grounds are instead the Juncke plans. Regrettable or not, the Investment Plan365, the anti austerity plan366 and the quotas migrations plan367 are the only proposals which found a synthesis of the nationl ones. Approved by the Europan Council and Parliament, they are also the only ones which had found a real application. The leadership in the European Insitutions is vacillating. Barroso, former president of
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The geopolitical dimension of the « Merkel plan » and the « Migration weapon » : struggle between two rival models of Europe Eurocontinent 17 march 2016. 359 On Migrants Crisis Matteo Renzi proposes European ‘migration bonds’ Politico 15 April 2016 and Renzi: EU at 'crossroads' between austerity and recovery EUObserver 25 June 2014 and again more recently Matteo Renzi al Corriere: "L'austerità ha fallito e discutiamo di virgole. Non capisco la Merkel e non sto zitto per quieto vivere" Huffington Post 18 September 2016. 360 Hollande’s ambitious ‘New Deal’ for Europe Euractiv 25 June 2016. 361 Merkel, Hollande, Renzi Meet to Discuss Gameplan Fortune 21 August 2016. 362 The Ventotene Manifesto, whose full title is "For a Free and United Europe. A draft manifesto", was drawn up by Altiero Spinelli Emesto Rossi (who wrote the first part of the third chapter) and with the participation of Ursula Hirschmann in 1941 when they were both interned on the island of Ventotene. After being distributed in mimeographed form, a clandestine edition of the Manifesto appeared in Rome in January 1944. The Manifesto advocates the ideals of European unification in a federal direction relying on the concepts of peace and freedom Kant and the Hamiltonian federalism institutional theory. The authors argued that it was necessary to create a political force outside the traditional parties, inevitably related to the national political struggle, and therefore unable to respond effectively to the challenges of increasing internationalization. From this pladge was born shortly after the European Federalist Movement. Published by Union of European Federalist. 363 The Heads of State and Government of the Republic of Cyprus, France, Greece, Italy, Malta, Portugal and Spain, have gathered in Athens, with the aim of enhancing our cooperation and to contribute to the dialogue on the future of the EU expecially to fight the Austerity and Migration Crisis. Athens Declaration of the 1st Mediterranean EU Countries’ Summit 09 September 2016 364 PM Tsipras: “We need a great progressive alliance in Europe” to Bima 24 June 2016. 365 On 25 November 2014, the European Commission revealed the details of its 315-billion-euro investment plan, so called Junker Plan. The idea is to create a new European Fund for Strategic Investments (EFSI), with €5 billion coming from the European Investment Bank and an €8 billion guarantee from existing EU funds, making a contribution of €16 billion in total from the institutions. The €8 billion uarantee will come over a three-year period from the Connecting Europe Facility (€3.3 billion); Europe’s research programme Horizon 2020 (€2.7 billion) and so-called “budget margin”, or unused funds, worth €2 billion. The resulting EFSI fund, totalling €21 billion, is expected to generate €240 billion for long-term investments and €75 billion for SMEs and mid-cap firms over the period 2015-2017. The plan drew questions over the lack of new cash, with some members of the European Parliament calling it an exercise in "recycling and re-labelling" existing programmes. ‘Juncker Plan’ becomes friendlier to poorer EU members Euractiv 6 october 2016. 366 The Junker proposal to take the teeth out of the Stability Pact. The pact limits any new borrowing by governments in the euro zone to a maximum of 3 percent of gross domestic product. Juncker wants to change the rule into a non-binding benchmark and he is backed by both French President François Hollande and Italian Prime Minister Matteo Renzi. For Juncker, the announcement of reforms alone should be sufficient for the suspension of the pact's rules and to give the country violating the deficit rules more time to get its budget under control. Berlin Faces Austerity Challenge in Brussels Spiegel 10 February 2015. 367 The European Agenda on Migration outline the immediate measures that will be taken in order to respond to the crisis situation in the Mediterranean as well as the steps to be taken in the coming years to better manage migration in all its aspects. Tripling the capacities and assets for the Frontex joint operations Triton and Poseidon, a temporary distribution mechanism with quotas and operation in the Mediterranean to dismantle traffickers' networks and fight smuggling of people Managing migration better in all aspects: A European Agenda on Migration European Commission Brussels, 13 May 2015.
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the Commission, decided to join Goldman-Suchs368. Donald Tusk369, current president of the European Council, is not supported by the polish Government for the next 2017 Council precidency election. Martin Schulz, current President of the European Parliament, is also thinking to leave Brussels to replace Angela Merkel in the next German elections370. Therefore, Jean-Claude Junker, seems the only real leader at Europen Level (or at least the one who put on his face).
The 2016 State of the Union During the September 2016 State of the Union371, in his opening speech372, Jean-Claude Juncker presented his plan for the EU post Brexit, which, for now, seems to be the only route to follow. After having remarked the changing of direction of the EU under his precidency, President Juncker announced a series of initiatives:
Better Regulation approach the Commission remarked the efforts done, to withdrawn more 100 legislative proposals in the period 2015-16, relaunching the program for the next year373.
Investments: The Commission proposed to double the duration of the Fund and doubled its financial capacity. The European Investment Fund will provide a total of at least €500 billion of investments by 2020. And the Commission committed to work beyond that to reach €630 billion by 2022. The Commission also launched an Investment Plan for Africa and the Neighbourhoods, which has the potential to raise €44 billion in investments, going up to €88 billion if Member States contribute in it374.
Capital Markets Union: to address the financial crisis Junker proposed to
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Barroso had deeper ties to Goldman Sachs EUObserver 27 September 2016. Jaroslaw Kaczynski puts Donald Tusk’s position in Brussels at risk Financial Times 4 october 2016. 370 Brussels or Berlin? Schulz tight-lipped on possible tilt at chancellor euractiv 23 Septamber. 371 The State of the Union speech by the President of the European Commission constitutes an important instrument for exante accountability vis-à-vis Parliament but it is also aimed at rendering the definition of priorities at EU level more transparent and at communicating those priorities to citizens. It resembles similar speeches in national democracies. The State of the Union debate in the European Parliament, 2016 Brefing European Parliament. 372 State of the Union 2016 European Commission 14 September 2016. 373 State of the Union 2016: Commission presents results of Better Regulation approach European Commission 14 September 2016. 374 State of the Union 2016: Strengthening European Investments for jobs and growth European Commission 14 September 2016. 369
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accelerate the Capital Market Union, making a concrete roadmap. In the Commission view a Capital Markets Union would make EU financial system more resilient and boost stability, giving companies an easier and more diversified access to finance375.
Simplification of funds rules: The Commission was proposing to simplify the rules under which Member States and other beneficiaries receive EU money. Some of the expected results include: easier and faster access to EU funds, a more agile budget with a new EU Crisis Reserve and extend the duration of the EFSI until 2020 and to double its financial capacity376.
Connectivity: The Commission was proposing to fully deploy 5G, the fifth generation of mobile communication systems, across the European Union by 2025. And proposed also to equip every European village and every city with free wireless internet access around the main centres of public life by 2020377.
Copyright: The Commission presented the reform modernisation of copyright, which its view will increase cultural diversity in Europe and content available online, while bringing clearer rules for all online players. The proposals would also bring tools for innovation to education, research and cultural heritage institutions378.
Security: Commission set out how the European Union could enhance security in Europe by improving the exchange of information in the fight against terrorism and strengthening external borders. The measures proposed include the accelerated operational delivery of the European Border and Coast Guard, a quick adoption and implementation of an EU Entry-Exit System and upcoming proposals to create a European Travel Information and Authorisation System. Additionally, as part of the Commission's efforts to
State of the Union 2016: Completing the Capital Markets Union – Commission accelerates reform European Commission 14 September 2016. 376 State of the Union 2016: EU budget review further focuses budget on priorities, ensures more flexibility and less red tape European Commission 14 September 2016. 377 State of the Union 2016: Commission paves the way for more and better internet connectivity for all citizens and businesses European Commission 14 September 2016. 378 State of the Union 2016: Commission proposes modern EU copyright rules for European culture to flourish and circulate European Commission 14 September 2016. 375
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pave the way towards a Security Union, the Communication also proposed to take further actions to improve the security of travel documents to prevent document fraud and to strengthen Europol's European Counter-Terrorism Centre379.
Defence: The Commission relauched the plan for a European Defence, the Lisbon Treaty enables those Member States who wish, to pool their defence capabilities in the form of a permanent structured cooperation. For Juncker, this would be the moment to create a European Army. The issue was also addressed by the proposal for a European Defence Fund380.
The speech gains the support of all the main parties: Alde, S&D, EPP. However, GUE/NGL and Greens/EFA were a bit disappointed, asking respectively more Flexibility and attention for the Climate. While ECR, EFDD, ENF and nonattached381 member declared their contrariety of more European integration. Marine Le Pen (ENF, FR) called Mr. Juncker’s speech “insipid and faulty”, saying that it was “basically like a funeral for the EU”.
Less or More Europe? Summarising the 2016 State of the Union President Junker proposed to face the challenge of: fragmentation, populism, unemployment and social injustice (as he identified) increasing the integration:
To address the migrant crisis on the short term he proposed to enhance the border control. And on the long one he relaunching the old idea of a European Army (which is probably already dead, as the previous attempts382) and an Investment plan for Africa.
To address the European Economic Crisis, he proposed an Investment plan and a Capital Market Union. Aside also investment and more regulation on
379
State of the Union 2016: Commission Targets Stronger External Borders European Commission 14 September 2016. The State of the Union 2016: Towards a Better Europe – A Europe that Protects, Empowers and Defends European Commission 14 September 2016. 381 2016 State of the Union debate European Parliament 14 September 2016. 382 The first idea of an european army was the CED European Defence Community, proposed in 1950 by René Pleven, the French Prime Minister, in response to the American call for the rearmament of West Germany. The intention was to form a pan-European defence force as an alternative to Germany's proposed accession to NATO. 380
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the IT, as the Commission is already doing throught the initiative of April on the Digital Single Market383. “More Europe is the reason of Brexit” argued Nigel Farage during the debate. Indeed, this is the question the European leader should to solve. Indeed, analyzing Junker attitude he changed positions severl times: (i) in his 2015 State of the Union384, he said “there is not enough Europe in this Union. And there is not enough Union in this Union.” (ii) Fast-forward to the Brexit campaign and Juncker was shifting tack. In an April 2016 speech Juncker said, “The Commission is doing less. I think that one of the reasons that European citizens are stepping away from the European project is that we are interfering in too many domains of their private lives.” (iii) Speaking to reporters385, Juncker sounded almost proud of his new Eurorealist tone: “I am not an advocate of the ‘United States of Europe,’ nor am I an integration fanatic. You can’t deepen the European Union against the wishes of the European countries.” (iv) In the 2016 State of the Union President Junker did not solve this dichotomy, relunching the Better Regulation Agenda but also foreseeing more integration thought a Capital Market Union and a European Army and more dependence by the Union thanks to the Investment Plans and Regulations. Moreover, without arguing if the needs of the specific proposal, this is again a topto-bottom plan, exactly the opposite that a part of the citizen and European leader were asking for. Not a real plan on Brexit If the plan to address the challenges of Europe is arguable in its contents and issues, what is really missing in the Juncker State of the Union was a route for Brexit. President Juncker avoided to address directly the question on the process to follow and the request that the EU will make to UK. Indeed, the official position of all the Institutions is to wait the Trigger of the Article 50 TEU, and so the UK requests, before start the negotiations386. This waiting position was already criticized before the referndum (as previously described) because it is not giving an 383
Commission sets out path to digitise European industry European Commission, 19 April 2016. State of the Union 2015 European Commission 9 September 2015. 385 Interview with Juncker and Schulz 'Deadly for Europe', Spiegel, 8 June 2016. 386 Post-Brexit EU summit must offer voters security – Tusk, Reuters, 13 Seotembers 2016. 384
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EU direction to the discussion. However, his general position can be summed up looking to some of his speeches:
Trigger the Article 50 TEU as soon as possible, “We respect and regret the UK decision, but EU as such is not at risk. “We would be happy for the request for Brexit to take effect as soon as possible.” Juncker said.
He also noted that the new relations with UK will not include “à la carte” access to the Single Market, and not better condition than the ones proposed in the Frebruary Agreement.
Maintain the People Freedom of Movement as imperative to access the Single Market: “We Europeans can never accept Polish workers being harassed, beaten up or even murdered on the streets of Harlow. The free movement of workers is as much a common European value as our fight against discrimination and racism”.
Tusk different vision The Junker vision was mostly shared by the EP President Schultz, instead the European Council President Donald Tusk had a different opinion. He supported a waiting position, saying the EU needs time to lick its wounds and should shift power back from Brussels to national capitals “restoring control over events and processes which overwhelm, disorientate, and sometimes terrify people”387. On Brexit he had also a completely differe attitude. Mr. Tusk showed himself more open to the British requests, as he did during the previous negotiations for the reassesting the UK membership in February 2016. Moreover, he was also convinced that the Council would be the right place for the negotiations. According to him, The Council is legally the palce for the divorce talks, as the UK is still a member of the EU not a “third state” that would usually be dealt with by the Commission. Following this, Mr. Tusk self-proclaimed his-self as “shadow” Negotiator of Brexit, stating the talk with Mrs. May and also with other European leaders. This dualism (not new) would play a decisive role both in the negotiations 387
Letter from President Donald Tusk before the Bratislava summit European Council 13 September 2016.
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and in the future organisation of the EU. Indeed Mr. Tusk also was asking for less involvement of the EU in national matters, and supporting the idea that further step of integration should be planned by the European Council not Commission or Parliament.
The Brexit Negotiators Even if the position of the Insitutions is to wait the UK trigger the Article 50 TEU and they did not outlined its intention and requests in detail; they already hired the Negotiators. However, the procedure of negotiation is not clear and so easy to unterstand. Despite part of the experts388 interpret the Article 50 TEU in liaison with Article 218 (3) TFEU, so giving the power only to the Commission, which should lead the negotiations through a team of negotiators. Parliament and Council had appointed their Nagotiator and gave them mandate to create their own team. Moreover, also the President of the single Institutions wold be involved, especially Tusk who always put himself as moderator in the negotiations with the UK. Finally, Negotiators and Presidents must refer to the Parliament, which has to approve the deal, before the Council which would be able to retify the new agreement389.
The Council Negotiator - Didier Seeuws Didier Seeuws is a Belgian civil servant and diplomat, he stated working as an economic and trade attaché to the Belgian embassy in Washington, D.C. from July 1991 to July 1995. After, he moved to the trade minister from August 1995 to July 1998, being responsible for investment and bilateral relations with North America and Asia. From August 1998 to July 2002, he worked as an adviser to the Permanent Representation of Belgium to the European Union (EU), August 2003 to July 2007, he served as the spokesperson for the Prime Minister of Belgium, then for Guy Verhofstad. In 2011 he returned to the Permanent Representative of Belgium to the EU, covering various roles. On 1 December 2014, Seeuws was appointed as the Director of Transport, Telecommunications and Energy in 388 389
Belgians on the move. Politico. 27 June 2016. No needs to make the deal ratify by the Member States.
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the General Secretariat of the Council of the European Union, during Donald Tusk390 mandate. On 27 June 2016, Mr. Seeuws was the first negotiator to be appointed. He is now the chief of a Council internal task force to address the issue of Brexit, currently doing preparatory work.
Mr. Seeuws, who like Mr. Van Rompuy comes
from the region of Flanders, is known in Brussels circles for his intellectual sharpness, eye for detail and stamina. With a deep understanding of the EU’s legal complexities and its subtle political dynamics, Mr. Seeuws was hailed for his middle-of-the-night alertness during the debt crisis and his readiness to continue working as dawn broke. He helped bridge divisions between the bloc’s leaders when the EU created its bailout fund, introduced tougher budget rules and agreed bailouts for Greece. He is less mediatically exposed than the other Negotiators, so currenly is difficult to picture his idea of Brexit. However it is probably aligned with the one of Mr. Tusk, who probably choose him to maintain the leadership of the negotiation, from the Council side.
The Commission and chief Negotiator – Michel Barnier Michel
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Movement (UMP). He worked in 2006 as a special adviser of José Manuel Barroso, at the time President of the European Commission, and presented a report to the Council of Ministers proposing the creation of a European civil-protection force391. Between 2006 and 2007, he served as member of the Amato Group, a group of high-level European politicians unofficially working on rewriting the Treaty establishing a Constitution for Europe into what became known as the Treaty of Lisbon, following its rejection by French and Dutch voters. After he was Minister for Agriculture and Fisheries under Nicolas Sarkozy Government from 2007, stepping down on 7 June 2009 upon his election as a Member of the European Parliament (MEP). He was twice appointed Acting Commissioner for Industry and
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"Brexit: Le Belge Didier Seeuws désigné négociateur en chef pour la sortie britannique de l'UE" La Libre Belgique. 26 June 2016. 391 Who is Michel Barnier: The Frenchman in charge of the EU's Brexit negotiations, the Telegraph, 30 August 2016.
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Entrepreneurship in Antonio Tajani's stead, from 19 April 2014 to 25 May 2014 and from 1 July 2014 to 16 July 2014. As European Commissioner for Internal Market and Services, Barnier handled many important issues, such as the reform of the financial sector (40 pieces of legislation between 2010 and 2014), the Banking Bnion (starting with the Single Supervisory Mechanism392) and the Digital Single Market. Since 2015, Barnier has been serving as unpaid Special Adviser on European Defence Policy to President of the European Commission Jean-Claude Juncker. On 27 July 2016, Mr. Juncker in reaction to quick decision by National Governments to appoint Didier Seeuws, announced to have appointed Barnier as the European Commission's chief negotiator on Brexit, having the duty to will report directly to the President and having at his disposal the best Commission experts. The Commission was warried about the Council taskforce could be a first step to taking over the leading role in the negotiations393. Waiting the negotiation Barnier task would be to prepare the ground internally for the work ahead. As part of a team he is building, Barnier has recruited as his No. 2 a German named Sabine Weyand, who was a deputy director general in the commission’s trade department. He will be advised by a group of Directors-General dealing with the issues relevant to the negotiations, and on the Team of DG Trade. Mr. Junker commented his appointment saing "I wanted an experienced politician for this difficult job’.394 However this is not the only reason of his appointment. Barnier, when he was EU financialservices chief from 2010 to 2014, oversaw an expansion of banking regulation to tackle the financial crisis and the UK Government repeatedly clashed with the bloc over
issues ranging from a cap on bankers’ bonuses to the location of clearinghouses. At the time the then French president Nicholas Sarkozy called Barnier's appointment 392
Single Supervisory Mechanism (SSM) for banks led by the European Central Bank (ECB) was created to strengthen the Economic and Monetary Union in 2013. The set of proposals is a first step towards an integrated “banking union” which includes further components such as a single rulebook, common deposit protection and a single bank resolution mechanism. Single Supervisory Mechanism, European Commission. 393 "Belgians on the move". Politico. 27 June 2016. 394 The Heads of State or Government of the 27 Member States as well as the Presidents of the European Council and European Commission held an Informal Meeting in Brussels on 29 June 2016 following the Referendum of 23 June in the United Kingdom. They agreed on the need to organise the withdrawal of the United Kingdom from the European Union in an orderly fashion. Article 50 of the TEU provides the legal basis for this process. Full Statement of the Informal Meeting at 27, of 29 June 2016.President Juncker appoints Michel Barnier as Chief Negotiator in charge of the Preparation and Conduct of the Negotiations with the United Kingdom under Article 50 of the TEU European Commission 27 July 2016.
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"a French victory and a defeat for Anglo-Saxon capitalism."395. That is why most of the UK reactions were from the cold to the disappointed. The Sun's political editor Tom Newton Dunn said "declaration of war"396 and the Financial Times described him as “most dangerous man in Europe”. Policy analyst Pawel Swidlicki at think tank Open Europe said "his appointment suggests that the European Commission will take a tough approach during the Brexit negotiations, particularly when it comes to financial services".397 With conservative political roots, Gaullist style, old-school manners and deep discretion, Barnier is also known to be an EU suporter, having often act more as European citizen rather than a French one. Despite of his hostile reputation he seems to maintain a low profile before the negotiations, avoiding hard speeches. Furthermore, he is organizing a tour on the Member States to understand the mood of the national governments398.
Trade Commissioner Cecilia Malmström To take into consideration for the negotiatons is also Cecilia Malmström, EU’s Trade commissioner, who runs the portfolio most directly linked to Britain’s. Malmström is a Swedish Liberal, being Vice President of the Swedish Liberal Party from 2007 to 2010 and Minister of the EU Affairs from 2006 to 2010399. After she moved to Brussel becoming a veteran, having served as Commissioner of Home Affairs from 2010 to 2014 and since 2014 Trade. Malmström is in charge of one of the most controversial file of the EU the FTAs with US and Canada (so colled TTIP and CETA). With a deep knowledge of trade and negotiations is almost impossible she would not be involved. Besides, her Team of DG Trade, which counts about 700 people in differet department, will directly support the Negotiators. However, dispite the incumbent Brexit Negotiations she seems more interested to complete the trade deals; which negotiation are still ongoing. “We will do whatever we can to make sure that we make as much progress as possible in the coming month, and,
395
Michel Barnier: Europe's Mr Brexit Internationa Business Time 30 July 2016. UK reacts coolly to Michel Barnier’s Brexit appointment Financial Times 27 July 2016. 397 Michel Barnier: Europe's Mr Brexit Internationa Business Time 30 July 2016. 398 EU’s Barnier builds Brexit negotiation team, plans European tour Euractiv 21 September 2016. 399 Cecilia Malmström CV, European Commission. 396
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if possible, conclude it before the Obama administration leaves office,” Malmström said at an Atlantic Council event in Washington. “That is still the ‘Plan A’ and that has not changed even if the (British) referendum is there… But for now and for the immediate future, the United Kingdom is a member of the European Union, and we negotiate this on behalf of all 28 members. 400 However, in July, Ms Malmström suggested the business between the UK and EU should be conducted under WTO after Brexit, before a new trade agreement would be signed, backing so a hard Brexit.
The Parliament Negotiator – Guy Verhofstad Guy Maurice Marie Louise Verhofstadt is a Flemish Belgian politician, who served as the 47th Prime Minister of Belgium from 1999 to 2008 (he was the first liberal since 1884). Since 2009 he has served as a Member of the European Parliament where he is the leader of the Group of the Alliance of Liberals and Democrats for Europe (ALDE)401 and he was also candidate as successor of Brarroso. Verhofstad is a fervent europeist, being the founder of the interparliamentarian federalist Spinelli Group402 and releasing a book title “The United States of Europe”, where he set out his vision for a superstate. In August 2015, he called for a reform of the EU's asylum and migration system, in reaction to the European migrant crisis, criticizing Cameron and Hollande for opposing the European Commission's proposal of migrants’ quotas, and also asking France, the UK, and Hungary to stop building up walls and border security measures. On 8 September the Conference of Presidents appointed Guy Verhofstadt as European Parliament point man for Brexit negotiations403, compleating the sheme of Institution Negotiators. To have a say the EP chose an expert, having Verhofstadt led before also negotiations on behalf of the European Parliament for the inter-
400
Malmström says EU-US trade talks can survive Brexit Euractiv 30 June. Guy Verhofstadt Leader of ALDE Group, president ALDE Bureau ALDE Group. 402 The Spinelli Group is an initiative launched in September 2010, led by Guy Verhofstadt, Daniel Cohn-Bendit, Sylvie Goulard and Isabelle Durant, followed by Andrew Duff and Jo Leinen as co-chairmen of the MEP-Spinelli Group. The Group want to inject a federalist momentum into the political decisions and policies of the European Union. Spinelli Group. 403 Parliament appoints Guy Verhofstadt as representative on Brexit matters European Parliament 8 September 2016. 401
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institutional agreement on Better Law Making404, and being part of the team that negotiated the deal with the UK. Mr. Verhofstadt will work closely with the Chair of the Constitutional Affairs committee, Danuta Hübner (EPP, PL), and other committees wherever necessary to shape the EP’s negotiating position, preparing the EP position in the negotiations, in close consultation with the Conference of Presidents. Mr. Verhofstadt federalist point of view is well known, ‘A loose confederation of nation states based on the unanimity rule will never be able to deliver decisive results’ he declared. Being also appointed of European nationalism and fanatism by Nigel Farage405. He was the one who spoke more about the incoming negotiations. Giving a view of the Europe after Brexit, and the position to take during the negotiations.
He saw in Brexit a new clear signal of the disaffection declaring: “European citizens are not against Europe; they are against this Europe. A Europe that has become an expert in making legislation on the exact measures and colours of a pack of cigarettes, on the amount of water toilets flush or on the level of subsidies football club may receive from their local government."
And he would like to see more reforms in the close future to address the challenges Europe is facing: “People want a Europe capable of handling the big crises we are facing today. What they want is a European Border and Coast Guard and a European asylum and migration policy to tackle the migration crisis; a European Intelligence Capacity to fight terrorism, a European Government to secure the euro and a European Army to protect our borders. And to avoid the referendum in other countries, which risks to
404
Adopted by the European Parliament on 9 March 2016, the agreement was initially presented by the Commission on 19 May 2015. Part of its better regulation agenda, the proposal was announced as one of the ten priorities of the Juncker Commission at the start of its term, with the aim to design EU policies and laws so that they achieve their objectives in the most efficient and effective way possibleInterinstitutional Agreement on Better Law-Making. The negotiations took place in a constructive atmosphere. Whilst each institution had its specific priorities, there was a shared sense of the relevance and purpose of the exercise, which was also reflected in the relatively quick progress of the talks, and the items to be addressed. Interinstitutional Agreement on Better Law-Making, Information Note European Parliament. 405 Responding to Mr Juncker's speech, during the State of the Union debate Frange told the European Parliament: "If you were to think of this building as a temple, well Mr Verhofstadt is the high priest - a fanatic. In fact, there is only one real nationalist in the room and it's you (Mr Verhofstadt) - because you want flags, anthems, armies, you are an EU nationalist. I frankly think that this appointment amounts to pretty much a declaration of war on any sensible negotiating process. If you stick to the dogma of saying that for reciprocal tariff-free access with the single market we must maintain the free movement of people, then you will inevitably drive us towards no deal - no deal and trading on WTO (World Trade Organisation) rules. Mr Farage added leater: "I would argue what we really need is to have a sensible, common sense approach and for this parliament to recognise it has made a mistake and to find somebody who actually likes the United Kingdom to lead these talks." Nigel Farage says EU's top Brexit negotiator Guy Verhofstadt is a 'fanatic' The Telegraf 14 September 2016.
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kill the EU406.
He also supported the proposals put forward by Commission President Juncker on the European Defence Union and the Border Controls. Wishing a reform of the Stability Pact, build on the Five Presidents Report (so far a Fiscal Union)407. During the 5 October debate408 in the European Parliament about the
upcoming European Summit, Verhofstadt addressed the Brexit negotiations, laiding out the conditions he wants to pursue:
No pre-negotiations before the triggering of Article 50 (to do as soon as possible)
Negotiations need to be finished before the next European elections.
The new EU-UK relationship needs to be as close as possible, remarking that this is in the interest of EU and UK citizens.
No limitation to the free movement of people if the UK want to have access to the single market. The former Belgian prime minister admitted that Brussels has “no vision” for
what will be fraught negotiations, insisting however it might be up to Britain to propose a deal for future relations. Having a long history of criticising Britain, he had beem alredy accused Theresa May and her Secretary of Health Amber Rudd of “inflaming tensions” over her plan to force firms to declare the number of foreign workers they employed409. His role is also controversary because the Article 50 allows (better does not forbid) the participation of the UK parliaments to the discussion over Brexit and so to vote the resolution on it, but not say anything about an EP Negotiatior.
406
"Without change, we are sleepwalking towards a disaster, towards 27 referenda that will end the EU.", Verhofstadt Alde Group 05 July 2016. 407 "A new and reformed Europe is the solution against uncontrolled globalisation and the cancer of nationalism and populism", Guy Verhofstadt Alde Group 14 September 2016. 408 Verhofstadt on Brexit: “European values will never be up for negotiation.” Alde Group 05 october 2016. 409 EU Brexit negotiator says UK ‘inflames tensions’ with foreign worker name and shame policy the Express 8 October 2016.
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Negotiation of the UK withdrawal – European side Scheme
The opion of the Member States The negotiations scheme form the European side is very complicated, involving different actors: Presidents of the Insitutions, Negotiators, and Commitee. If the position of the Parliament and the Commission is similar and directed to have a strong stand during the negotiations, on the Council-side Mr. Tusk is more soft in his approach and determinated to get a deal which secure at least the same level of trade. From this pictures is missing the intentions of the Member State, which are going to play a decisive role, but having positions sometimes inconcilliable. The most involved countries, so the ones which would have a say in Brexit, could be identify looking at the level of Trade and Migration between the EU countries and UK. Germany, France, Holland, Spain, Ireland and Belgium are the more linked with the UK by trade relations. On the migration side instead, the Eastern Counties, so called Visegrad, are the most involved, having in total more than a million citizens living in the UK. Ireland is also really linked as well as France, Italy and Spain (which has the opposite problem with a surplus of British people living there).
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Trade between Member States and the UK
Source: 2014 Population by Country of Birth and Nationality Report, Office for National Statistics of the UK
Migration between Member States and the UK
Source: 2014 Population by Country of Birth and Nationality Report, Office for National Statistics of the UK
Denmark is a traditional ally of the UK with a healthy trade balance, that is why Mrs. May started her tour from there. Both countries have secured EU policy optouts and have to contend with a strong degree of Euroscepticism. However, there is only a light support for a ‘Dexit’. Denmark would seek to preserve its close economic relationship with the UK and avoid stoking domestic Euroscepticism, so it would probalby act on the side of the UK.
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Netherlands tho other traditional ally of the UK supported its attitude on free trade and its approach to financial issues. Moreover, Euroscepticism caused sever disagreement with the EU like: the rejection of the European Constitution in 2005, the founding of the anti-EU and antiIslam PVV in 2006 and the veto on the EUUkraine Association Agreement in 2016. The Dutch fovernment should find a balance between the populist forces at home and the need to preserve trade relations with its third largest export partner. The March 2017 elections are expected to be followed by a lengthy coalition formation of at least four parties in a scattered political landscape. The Dutch approach to the negotiations would be aimed to create favourable trade relations with the UK, while at the same time discouraging domestic Euroscepticism. Austria has been at the forefront of the EU’s migrant crisis and subsequent populist swing in support for anti-migration politicians. In the event of a Hofer win the election re-run of 4 December 2016, Austria could change positions becoming more sympathetic to the UK’s migration demands, risking so to start a similar process to leave the EU. Under Van der Bellen, instead, Austria would to follow Germany position during the negotiations. Euroscepticism and Migration will define Austrian politics and its approach to UK-EU negotiations. Germany traditionally occupied a preminent position within EU negotiations, drived by its economic leadership and a self-designated responsibility for holding the European project. Additionally, Germany had a significant trade imbalance with the UK, so Mrs. Merkel has already asked for a peaceful negotiation, aimed to preserve the current economic relations. However, the German Government is also looking to recreate a stability of the bloc without the UK, this can play a more valuable role than the trade. Merkel‘s intention to maintain an amicable relation with the UK is also threatened internally by right-wing populist party AfD, which has made electoral gains in local and regional elections in 2016. This undermined Merkel’s power both in Germany than in Europe. The campaign for the federal elections in September 2017 will play a decisive role also in the negotiations attitude. However, Mrs. Merkel seems to not have reached a clear
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position on the Brexit possible outcome. Spain, thanks to a huge import of Spanish goods and significant population of UK citizens’ resident in Spain, it had a significant link with the UK. However, at the moment, Spain is more focuzed on the internal political instability, after two elections the two main party Socialist (PSOE) and People’s Party (PP) were unable to create a government, due to the raise of the two new Party Podemos and Ciudadanos and the strong position of the Catalonians Parties410. Parliamentary elections are expected in December 2016, if Rajoy will not get appointed for a second term by the Parliament on 31 October. Because of its internal problem Spain will not play as significant a role in the exit negotiations, except for the issue of Gibraltar. The Spanish Foreign Affairs Minister Garcia Margallo claimed Spain to renegotiate a joint sovereignty status with the UK over the territory, tring to maintain the free movement of people to not lose the British people living in Spain. Italy the current position of the PM Renzi is close to the Euroscepticism, having criticized the EU most of the time. He has sided with the UK’s EU reform agenda and used the Brexit vote to claim for further reforms in Brussels, particularly around the functioning of the Economic & Monetary Union. However, he never declared the intention to leave the bloc, proposing instead different plans of EU reforms. Renzi should not deviate from the EU’s central negotiating position. However, Italy has the most uncertain position: the December referendum on the constitutional reform and the general election in 2018 could make Italy change its attitude. Eurosceptic parties as Movimento 5 stelle and Lega Nord are asking for referendum on the EU or Euro and if they will take over the Democrats the scenario could be totally different. Ireland is only Member State to share a land border with the UK and the Europe membership solved its security problem with the Good Friday agreement, Brexit will arm again the issue, maybe driving to the annexion of the Northern Ireland to Ireland. Generations of cross-border trade of goods, labour and services 410
Unidos Podemos is a left wing party, with lots of similarities with Greek Syriza and Italian Movimento 5 stelle carring the claims of civil society and youg people. Ciudadanos is an also a new political party, born from a flank of the PP with a more centre ideas and a more young appeal. Both the Left (ERC) and centre-right (CDC) Catalonian parties are asking for independence, having already won a referendum in 2014, which has been annulled by the Spanish Constitutional Court.
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linked the Irish and British economies tightly together. Although Ireland seeks to maintain the positive economic and trade relationships with the UK, the main issue remains the border between Ireland and Northern Ireland. This will lead the attitude of Ireland to initially strong positions to maintain the free movement of people. The Visegrad Group (Czech Republic, Hungary, Poland and Slovakia) adopted an early joint position on Brexit negotiations at the 16 September Bratislava Summit to securing their citizens’ rights to live and work in the UK. This position reflects the significant number of Visegrad member citizens living in the UK so the EastEurope Group said that it will put a veto on any EU-UK deal which limit it. Although the Visegrad Member States do not have the qualified majority needed to block a deal in the Council, this caim cannot be ignored. However, this position is controversial, because from the other side, Hungary and Czech Rep. are refusing the EU cooperation on the migrant crisis. Their Government are all eurosceptic making a strong call for a reform of the European system, to avoid possible referendums. Legislative elections are also incumbent in Czech Republic October 2017 and Poland before November 2019 making araise new extremisms. Belgium, dispite its size, is on the forefront in the negotiations, having two chief negotiators coming form its flank. The Eurosceptic position of populist Flemish nationalist NVA is more orientated on the reforms, having also called for a ‘North Sea Alliance’ with the UK (before the Leave vote). The NVA is caliming for a secession but remaining inside the EU (for istance as Scottland). Belgium traditionally holds a firm line on the four freedoms, however expect domestic politics to soften it. The popularity and strength of the NVA may hold the federal Government back from adopting a hard line during negotiations. France the Hollande Government has consistently taken a hard line against the UK, due in large part to the proximity of elections and a resurgent Front National riding a wave of Euroscepticism. The Government may also have an eye on the UK’s financial services industry, having appointed former Bank of France Governor Christian Noyer as Brexit Special Envoy. The upcoming French Presidential election guarantees that France will take a hard line in the early stages
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of the negotiation. Any hint of compromise will be a major boost to Marine Le Pen, who has promised her own referendum on membership if she wins. The attitude of the most involved players on the European Side can be summed up in the graphic below having France, Belgium and Visegrad the most unfavourable to the UK position (claiming the maintain of the free movement of people to make a deal with UK), alongside with the Presidents of Parliament and Commission and the Negotiator of the Parliament. Despite his backgroud the Commission Negotiator has not yet take a position, waiting to hear form the Members State. Italy and Ireland (respectively to fight against the euroscepticism and maintain the border opened) should act more strongly. President and Negotiator of the Council and Austria are following the German light approach, looking to have a solid deal on trade. Spain will be aside the discussion, waiting to solve its internal problems. The UK should have on its side Denmark and Holland which want to maintain the current custum union expecially on service and finance. Attitude of the most involved players on the EU side
The Failure of the Bratislava Summit With all this different perspectives to take into account it would be difficult to find a compromise and reach a common position both on the negotiation and on the future of the European Union. The informal Bratislava summit on middle of September411 was supposed to be the beginning of a long process of the EU, showing their unity. The 27 EU leaders, the UK was not invited, should debate the 411
Informal meeting of the 27 heads of state or government, 16/09/2016 European Council 16 September 2016.
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Jucker proposals and find a common position on negotiation attitude and postBrexit reality. However, the divisions, highlited before, killed the summit at its early begining. Despite a joint declaration412, establishing a roadmap, the outcome of the summed produced noting really tangible, except the divergences:
Migration: The meeting delivered no real plan on the the migration policy, just a commitment of the 27 to continue the dialogue, enhance the border control and implement the EU-Turkey agreement. The most divisive of all issues, played a dominant role. Italian PM Renzi, left Bratislava with a feeling of indignation413, dissatisfied by the lack of support to the southern countries, in managing the migration flows. Besides, his claims to increase the funds for the border was ignored, as well the proposal to establish deals with the North-Africa countries to control the migration flux. Viktor Orban, the Hungarian PM, condemned the EU’s migration policy as “selfdestructive and naïve”. Mr. Orban promised also a “counter-revolution” to take power back to the EU capitals and declared he would continue to buit up the walls on Hungarian borders to stop the migration, supported by the Czech Rep.
Terrorism: the 27 agreed to intensified cooperation and informationexchange among security services of the Member States and start to set up a Travel Information and Authorisation System (ETIAS).
Defence: even if the 27 committed to discuss the Junker plamn again in December, after a NATO opinion, France and Germay found a new common point on it (agreeing also on the others). Germany and France are moving ahead with attempts to unify the EU as a military alliance (now that Britain cannot blocked it anymore). They repeated the need for closer coordination within the EU on border protection and intelligence sharing to combat both terror and the smuggling of migrants into the bloc. Also Orban supported the initiative.
412
Remarks by President Donald Tusk after the Bratislava summit European Council 16 September 2016. Bratislava summit: Europe’s 'united front’ proves a fragile facade as leaders refuse to share a stage the Telegraph 16 September 2016. 413
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Economy: decision on extension of the European Fund for Strategic Investment should be taken in December. However again Mr. Renzi did not agree with the policy of Garmany and France and refused to stand with Angela Merkel and Francois Holland: “I cannot hold a press conference with Merkel and Hollande if I don't agree with their positions on immigration and the economy". Mr. Renzi claimed Europe should change its austerity policy which is hitting the souther European countries. Moreover he declared also that the rules should be respected by everyone, referring in particular to the trade surplus: "Germany does not respect the rules"414. The Bratislava summit failed mainly to communicate a message of unity.
Matteo Renzi officially broke the diretturium he created just a month before it, together with Germany a France. Those nations instead got closer, finding common grounds on migration, economy policies (supported also by all the Nordic countires) and on security and defence. Both of them declared to be ready to create a European Army, followed by Orban. The Hungarian PM acted as leader of the Visegard. The Eastern bloc seemed to have found unity in a right-wing nationalism, making a joint statement asking: (i) to strengthen the role of national parliaments, underlining respect for the principles of subsidiarity and proportionality. (ii) To strengthen the practical cooperation in defense to give it more substance implementing the Global Strategy base on Common Security and Defense Policy415. Remarking the importance of the free movement of people, after the breach with Germany and France, the Italian PM got more close to the Club Med (“Summit of Mediterranean EU countries”), the new circle created by the Greek Prime Minister Alexis Tsipras. The Greek leader hosted the first meet of the Club Med inviting France, Italy, Spain, Portugal, Malta and Cyprus in Athens just some days before the Bratislava summit416. The Club Med proposed to address the key issues such as the refugee crisis, negligible economic growth, high unemployment and the rise of the far right and euroscepticism using the recipe of a social Europe. 414
Vertice Ue, Renzi rompe con Hollande e Merkel: "La Germania non rispetta le regole" La Repubblica 16 September 2016. Bratislava summit: Europe’s 'united front’ proves a fragile facade as leaders refuse to share a stage the Telegraph 16 September 2016. 416 Med nations seek unity ahead of Bratislava meeting Ekathimerini 9 September 2016. 415
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The new alliance after the Bratislava Summit France Germany
France, Germany
Nordic Council* & Baltic Assembly*
Sweden, Finland, Danmark Estonia Latvia Lithuania
Club Med
Greece Italy Spain, Portugal Cyprus Malta Hungary Poland Czech Rep Slovacchia
Visegrad
Allies: Austria, Belgium, Luxemburg, Ireland, Allies: Holland *(no official position but generally following the Germany) Ally: Croatia
Allies: Slovenia, Romania, Bulgaria
While its ambitions were to mark the beginning of the new era for the EU, the Bratislava summit might as well enter the history books as the first of many Council meetings leading eventually to further disintegration of the Union as we know it. The three blocs formed after the Bratislava summit show the differences currently standing inside the EU, which could might affect negatively the forecoming negotiations. Again Europe is facing a crisis split over the major issues and without a clear vision of the future ahead. Comparing this picture with the attitude of the UK (which founds a new unity thanks to the May’s Government) reinforces the feeling that the risk is not only to get a bad agreement, but also to see new leaves within the European bloc.
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Chapter VI – The possible schenarios 1.
Comeback to the WTO tariffs
2.
Set a Free Trade Agreement
3.
Join the EFTA
4.
A Continental partnership
5.
A soft Brexit
Introduction After having described the steps foreseen by the Article 50 TEU, and seen the positions of the UK governmernts and EU leaders. This final Chapter analyze the possibile outcome of the negotiations. Theresa May said “Brexit means Brexit“, but nobody know what Brexit really means (even her). We have quoted, during this publication, experts and politicians speaking about Hard and Soft Brexit, but even in this case the definitions are vagues. Conventionally is asumed that a Hard Brexit would mean a leave without any agreement on the future relations with the EU. Instead a Soft Brexit (excluded the possibility of a half-brexit under the article 48 TEU) pictured a situation where the UK remain linked with the EU by a kind of agreement, which will keep it as close as possible to the EU. Therefore, the position currenlty supported from the UK Government and UK Institutions, respectively. This publication proposes a classification of the possible scenarios based on how they address (or not) the issue of the referenum: (i) control of immigration, (ii) access to the Single Market, (iii) ability to negotiate FTAs, (iv) payments to the European Budget, (v) degree of self-rule (soveregnity). The issue of identity has to be splited in: intenal of the UK so (vi) capability to prevent the independence of Norhtern Ireland and Scotaland, and internal to the EU (vii) Power to stem the eurosceptic movement across Europe and (viii) preserve the integrity of the EU. Finally, the (ix) tipology negotiations and (x) the estimated time are last issues to take care of.
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“Relying on World Trade Organisation rules doesn’t give us more control, it just hurts industry, it hits jobs and hikes up prices” David Cameron, former UK prime mininster, 2016
1. Comeback to the WTO tariffs In the mind of a lot of leave supporters, the vote of the referendum meant an immediate and total withdrawal from the European Union. This position is now being backed also by the UK Government (it is unknown whether it is real or an upward game). After the trigger of the Article 50 TEU, 2 years are needed to negotiate the terms of the exit. If no agreement will be reached (and approved by all the Member States) and both the parties will not agree to prolong the negotiations, the UK will be automatically pull out the EU. This will lead at the so called hard Brexit. UK will be out of the treaty, without any agreement with the EU Member States. The UK will restart from the point before it entered in the European Union. Dialogue over Security and Defence will be guarantee respectively by the Interpol agreement417 and the membership of NATO418 and UN419. The UN membership also Cooperation in several sector as Global Policy, Enviroment, Culture. Also the issue of the EU legislation can be overcomed by translating into its national legislations all the EU regulations or replace them with a different UK law, thanks to the Great Repair Bill. The real problems will be the trade, the UK will have thave to trade within the framework of the Word Trade Organisation420. Not only the custum union with EU will vanish, all the agreements with Third Countries will do the same. Included the main ones like the CETA, Canada free trade agreement, the EFTA and EEC treaty which establish the access to the single market for Iceland, Norway, Liectestain and Swiss; and the FTA with other mayor partners like China, India, 417
The UK is member fom the 1928 according to the Interpol website. The UK is a founder member state, North Atlantic Treaty on 4 April 1949. 419 The UK is member of the UN and member of the security council form its foundation in 1945, UN Charter 26 June 1945. 420 The UK is member of the WTO by 1 January 1995, before member of GATT: 1 January 1948, WTO website. 418
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Brazil, US etc. However, the WTO option is by no means guaranteed. A common Brexiter assumption during the referendum debate is that after leaving the EU, the UK could “simply” operate as an ordinary WTO member. Eventually that is true, but getting there would be far from simple. The WTO members are 162 countries and not all of them will be interested to negotiate immediately and on the basis of the previous tarrifs of the EU. Recent negotiating experience421 suggests that willingness to accommodate each other’s interests quickly is a scarce commodity in the WTO and even a final agreement cannot be guaranteed.
What is the WTO The WTO was born on 1 January 1995, but its trading system was in place since 1948, the General Agreement on Tariffs and Trade (GATT), which had provided the rules for the system. From the 1948 Agreement generated immediatelly a de facto international organization, also known informally as GATT, which over the years evolved through several rounds of negotiations. The table of contents of “The Results of the Uruguay Round of Multilateral Trade Negotiations: The Legal Texts” is a daunting list of about 60 agreements, annexes, decisions and understandings. In fact, the agreements fall into a simple structure with six main parts: an umbrella agreement (the Agreement Establishing the WTO); agreements for each of the three broad areas of trade that the WTO covers (goods, services and intellectual property); dispute settlement; and reviews of governments’ trade policies. The agreements for the two largest areas — goods and services share a common three-part outline, even though the details are sometimes quite different.
They start with broad principles: The General Agreement on Tariffs and Trade (GATT) (for goods), and the General Agreement on Trade in Services (GATS). (The third area, Trade-Related Aspects of Intellectual Property Rights (TRIPS), also falls into this category although at present it has no additional parts.)
421
Nothing simple about UK regaining WTO status post-Brexit, ICTSD 27 June 2016.
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Then come extra agreements and annexes dealing with the special requirements of specific sectors or issues.
Finally, there are the detailed and lengthy schedules (or lists) of commitments made by individual countries allowing specific foreign products or service-providers access to their markets. For GATT, these take the form of binding commitments on tariffs for goods in general, and combinations of tariffs and quotas for some agricultural goods. For GATS, the commitments state how much access foreign service providers are allowed for specific sectors, and they include lists of types of services where individual countries say they are not applying the “most-favoured-nation” principle of non-discrimination. Underpinning these are
dispute settlement, which is based on the agreements and commitments,
and
trade
policy reviews, an exercise in transparency. Much of the Uruguay Round dealt with the first
two
parts:
general
principles and principles for specific sectors. At the same time,
market
access
negotiations were possible for industrial goods. Once the principles had been worked out, negotiations could proceed on the commitments for sectors such as agriculture and services. Another group of agreements not included in the diagram is also important: the two “plurilateral” agreements not signed by all members: civil aircraft and Government procurement. Indeed, the WTO is essentially a place where Member Governments go, to try to sort out the trade problems they face with each other. The last and largest GATT round, was the Uruguay Round which lasted from 1986 to 1994 and led to
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the WTO’s creation. Whereas GATT had mainly dealt with trade in goods, the WTO and its agreements now cover trade in services, and in traded inventions, creations and designs (intellectual property). Currently, new negotiations are taking place under the “Doha Development Agenda” launched in 2001. Where countries have faced trade barriers and wanted them lowered, the negotiations have helped to liberalize trade. The WTO agreements provide the legal ground-rules for international commerce. They are essentially contracts, binding governments to keep their trade policies within agreed
limits.
Although
negotiated and signed
by
governments, the goal is to help producers of goods and services,
exporters,
and
importers
conduct
their
business,
while
allowing
governments to meet social and environmental objectives. The system’s overriding purpose is to help trade flow as freely as possible. That partly means removing obstacles and ensuring the clear trade rules. WTO settles also a dispute body, where nations can solve their disagreement on interpretation of agreements and trade issues. The process works with panel of independent judges, who analyze the situation and propose solutions, concerning two levels of judgment (primary and apellative). The pannel aslo monitors the implementation of the decision and in case of non enforcement, can negotiate the compensations. At all stages, the WTO director-general is available to offer his good offices, to mediate or to help achieve a conciliation. Indeed, countries are
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encouraged to consult each other in order to settle “out of court”.
The WTO EU membership The European Union has been a WTO member since 1 January 1995422. The 28 member States of the EU are also WTO members in their own right. The EU Single Market was partly inspired by GATT principles and practices. The Union has always been among the main promoters of effective international trade based on the rule of law. The EU’s Common Commercial Policy is one of the areas in which the Union as such has full and exclusive competency. Thus, the Commission negotiates trade agreements and defends the EU’s interests before the WTO Dispute Settlement. Since the entry into force of the Lisbon Treaty in 2009, the Council and Parliament have been co-legislators and thus have equal say on international trade matters. The Coucil has the decision-making power, while the Commission the negotiational and the Parliament the final scrutiny423. The EU membership is equal to 29 WTO members, so the 28 member states plus the EU itself. Which have combined “rights” (e.g. to be able to export to other countries, and not to be discriminated against), balanced against shared “obligations” (e.g. to open up to imports from them, and not to discriminate against them). The EU has agreed to keep its import duties within certain limits (for example, for some types of shoes this is a maximum of 17 percent). That limit applies to all EU members when they import from outside the EU. The EU’s quotas are for the whole Single Market, not any individual country such as the UK. Limits on agricultural subsidies are also for the entire EU. To be an independent WTO member, the UK would be creating its own rights and obligations out of the EU’s. That’s not as simple as it sounds. One reason is because other countries with different interests would ensure the balance is also right for them. Moreover, there is the problem to renegotiate the EU quotas. Discussions are still open over the issue Azevêdo addresses World Trade Symposium in London on the state of global trade, WTO NEWS: SPEECHES — DG ROBERTO AZEVÊDO 7 June 2016. 423 The European and National parliaments express their opinion aslo through the Parliamentary Conference on the WTO. Which is jointly organised by the European Parliament and the Inter-Parliamentary Union (IPU) and is intended to strengthen democracy internationally by bringing a parliamentary dimension to multilateral trade cooperation. THE EUROPEAN UNION AND THE.WORLD TRADE ORGANISATION, European Commission, 2 February 2013. 422
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if UK should keep or lose its part of the quota shared with the other EU countries.
Access to WTO The UK is already a WTO member, but its membership terms are bundled with the EU’s. Thus, the UK cannot just decide to go out to the EU and start to trade under the WTO terms, it would have to detach itself from the EU and regularise its position within the WTO. Re-establishing the UK’s WTO status in its own right means both the UK and the EU would negotiate simultaneously with the rest of the WTO’s members to extract their separate membership terms. Agreement on the UK’s terms is unlikely before those of the EU. Only after this procedure the UK could sign its own trade agreements, including with the EU424. Roberto Azevêdo, the WTO’s director-general425, said recently426 there is no precedent for a WTO member extricating itself from an economic union. The process would not be easy and would likely take years before the UK’s WTO position was settled, not least because all other member states would have to agree. “The UK currently has preferential trade relationships with the EU, and with the 58 countries with which the EU currently has free trade agreements. In the event of a British exit, all of these relationships would need to be re-established to maintain the same preferential access the UK currently enjoys via the EU. This would probably entail negotiations.” he declared427. The process for concluding such negotiations is unclear but a first step will be for the UK to re-establish its terms of trade within the WTO, to do so the UK has to set a “schedule” of commitments for each of the agreements (including agriculture, industrial goods and services) setting out the terms on which it trades. Indeed, the UK, as an individual country, would of course remain a WTO member, but it would not have defined terms in the WTO for its trade in goods and services. It only has these commitments as an EU member. Key aspects of the EU’s terms of 424
Nothing simple about UK regaining WTO status post-Brexit, ICTSD 27 June 2016. Roberto Azevêdo is the sixth Director-General of the WTO. His appointment took effect on 1 September 2013 for a fouryear term. WTO website. 426 Brexit and the WTO option: Key questions about a looming challenge Financial Times 12 July 2016. 427 Azevêdo addresses World Trade Symposium in London on the state of global trade, WTO NEWS: SPEECHES — DG ROBERTO AZEVÊDO 7 June 2016. 425
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trade could not simply be ‘cut and pasted’ by the UK. Therefore, important elements would need to be negotiated. Furthermore, the UK need to apply EU rules to make the process faster. Moving away from them, which is also one of Brexit’s objectives, would require further negotiation or at least peer review in the WTO. After UK has to negotiate the various tariffs with the other nations. Upon leaving the EU, rights that the EU secured for its members would arguably no longer automatically apply to the UK. This includes the right to restrict certain aspects of the free movement of people and to protect public utilities from competition. The UK might need to negotiate with other WTO Members to maintain these rights, because no WTO Member can unilaterally decide what its rights and obligations are. Other countries already have their negotiating priorities and may not be ready to shift resources to a new negotiation overnight. For some goods this is a relatively easy process, almost technical: the UK would simply adopt the import tariffs set by the EU. However, it is practically unknown the EU current level of commitments stending in the WTO428. Therefore the UK should negotiate a share of key quantities which are unknown. The only confirmed commitments on tariffs, quotas, and farm subsidies are from before 2004 when the EU had 15 member states. The EU has expanded three times since then, but in 12 years it has been unable to agree with the WTO membership on revised commitments. The last multilateral trade agreement concluded under the aegis of the WTO goes back to 1994 (the Uruguay Round). Probably entailing changes to the balance between concessions received and compensations granted, the Uruguay agreements will have to be re-opened at the request of either the Commission, the United Kingdom or more likely another contracting party, if not the WTO itself. Furthermore, there is a possibility of heavy sanctions to UK. Article 24 paragraph 6 of the GATT429 rules says that any re-imposition of protective measures at the border, whether tariff or nontariff, must give rise to compensation via negotiated concessions. Brexit will cause a renegotiations of tariffs, therefore
428
Nothing simple about UK regaining WTO status post-Brexit, ICTSD 27 June 2016. Azevêdo addresses World Trade Symposium in London on the state of global trade, WTO NEWS: SPEECHES — DG ROBERTO AZEVÊDO 7 June 2016. 429
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countries can ask for compensations if the outcome will be higher than before.
Agriculture The most difficult sector to deal with is the agriculture, whrere there are “tariff-rate quotas”. Since the quotas are divided up and allotted to exporters country by country, this leads to a great deal of bilateral haggling. London would probably have to negotiate to take over a portion of the EU quota, or add a new quota itself. If exporter countries will see an opportunity to increase their market access, the process could be held up by hard bargaining. The same issue involve the EU allowances for farm subsidies, which have a direct impact on prices or on how much farmers will produce, so the UK would have to try to negotiate a share. Britain could make this process easier by accepting large quotas and the use of generous agricultural support within the Third Countries, but it would then run straight into trouble with its own farmers.
Services The UK is the world’s third-largest exporter sevices, but even if in theory is not hard to create (or copy form EU) a service schedule, it is an ‘excruciating legal process’, as defined by Hosuk LeeMakiyama, director of the European Centre for International Political Economy and a former EU trade negotiator430. As example, it took five years to integrate Bulgaria and Romania into the EU services schedule after they joined the bloc. While some trade officials said it may be easier to create a schedule for a leaving member than one arriving, they seem to agree the process can be measured in years. 430
Brexit and the WTO option: Key questions about a looming challenge Financial Times 12 July 2016.
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Timetable While the schedules are being agreed, the UK’s legal status as a trading nation will be undetermined, with all that implies for uncertainty and business decisions. The speed of the UK being able to trade on WTO terms in its own right will partly depend on political will. Yet even if other Governments co-operate and accept London’s proposals, the legal processes and paperwork are likely to take years. Expert estimates431: ‘the EU (and UK) has around 20,000 products listed for collecting customs duties, thousands of product standards and regulations, and extremely complicated limits on access to its services market. Starting such negotiations presumes that your own resources and infrastructure are already in place and fully operational. Moreover, conducting multiple negotiations simultaneously would bring a further level of complexity.’ For its part, the UK would have to negotiate with the EU itself, the US, China, Russia, India, Brazil, and any trading nation or group of nations that matters. It would only take one objection to hold up the talks because the WTO operates by consensus, not voting, one reason why WTO negotiations take so long. The UK Government would have to balance conflicting interests with the other Country and domestically as well. Indeed, the problem is not to give UK the possibility to negotiate its own tariffs but to set it before UK leave the EU to guarantee continuity in its trade. The process of Brexit and WTO negotiations will be exausting and however after, it will take years to have the possibility to negotiate again the terms with Third Country. ”I can say that negotiations merely to adjust members’ existing terms have often taken several years to complete — in certain cases up to 10 years, or more. However, as far as the UK’s case is concerned, it is impossible to tell how long it may take” remarked Mr. Azevêdo432. Concluding the final deal will be not so fabourable to the UK also because the need to complete it quickly, pushing the UK in a very weak position (compared both with EU and other countries, which can wait). On this basis, it could take quite some time before the UK got back to a
431
Nothing simple about UK regaining WTO status post-Brexit, ICTSD 27 June 2016. Azevêdo addresses World Trade Symposium in London on the state of global trade, WTO NEWS: SPEECHES — DG Roberto Azevêdo 7 June 2016. 432
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similar position that it has today in terms of its trading relationships with other Countries. Understanding the situation ahead, at a meeting of all WTO Members of 30 September, Mr. Azevêdo urged again WTO members to start the discussions anticipating the negotiating work. At the end of the 2017 there will be the WTO’s 11th Ministerial Conference of Buenos Aires, the WTO Director General so asked to focus on how those achieved good outcomes, considering the general slow in the trade growth433.“I think the immediate priority now should be to deepen conversations between members to scope out the issues ahead of the 11th Ministerial. We should especially look for those balancing elements that take into account members' different interests and positions – elements that respond to the needs of developed, developing and least-developed members.” He declared clearly referring to the incoming storm of Brexit. The issue is not in the Agenda434, now that the UK clarify the period in which they are going to trigger the article 50, but it will be the elephant in the room, which cannot be ignored.
In the meantime The problem of holding new negotiation is not the outcome itself. The biggest problem is what to do in the period in between. While trade would continue, it could be on worse terms. Most likely, it would cost more for the UK to trade with the same markets, therefore damaging the competitiveness of UK’s companies. Currenlty the UK is trading under EU preferences on 60% of the country’s goods trade, divides as around 47% with the EU itself, and around 13% with the EU’s preferential trade partners. Thus, the implication is that UK exporters would risk having to pay up to 5.6 billion pounds each year in duty on their exports (Azevedo said). And there could be an impact on services trade as well.
Other legal issues The WTO negotiations would be about creating a legal status of UK in the new framework. They would be separate from any free trade agreements such as 433 434
DG Azevêdo urges WTO members to deepen discussions to advance negotiating work, WTO 30 September 2016. Proposed Agenda GENERAL COUNCIL: MEETING OF 3-4 OCTOBER 2016.
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with the US, EU, Canada or others, although the complicated web of talks would feed into each other. Indeed, the US and EU are creating free trade areas with bilateral agreements like TTP TTIP and CETA. The UK will be out of this negotiations. Also the UK would no longer be party to the FTAs negotiated by the EU with about 60 non-EU countries or organisations (together, these FTAs cover about 35 per cent of world trade). The benefits from these FTAs would disappear on the day of withdrawal. The UK would need to negotiate new agreements with all these countries, having also a much less bargaining power than the EU. Moreover, to create similar FTAs will take a long time (having as example how long the negotiations of the others FTAs are taking) if the UK would gain a competitive status. Brexiters want to turn the UK into a global trading powerhouse. But until the country has sorted out its legal standing, it risks merely sitting on the sidelines.435 Secondly, there are some preferential agreements concluded between the EU and current or former Commonwealth Countries (like New Zealand on milk, sheep meat, ACP nations on sugar, etc). Most of these agreements cannot be taken over unchanged by the EU, because it would suffer harmful competitive distortions. They will therefore have to be re-negotiated either completely or in part436. In a hard Brexit the UK will lose all the complementary regulation, which allows crossborder transfers of Goods, Capital and others. One example is the crossborder data flows (the most famous is the US EU Privacy Shield), which is fundamental for a service-based economy as the UK. WTO rules on e-commerce set a basical regulation, but too sectorial and not complex enough to face the current data-driven economy. Other third-country agreements concern recognisation of origin designation, special status and common policies. Currently EU has signed about 100 similar agreements, with 50 devoted to agriculture437. UK should then conclude similar agreements with all the countries involeved. For several years after Brexit to say the least, British external trade would be negatively affected. A long period of
435 436 437
Brexit and the WTO option: Key questions about a looming challenge Financial Times 12 July 2016. Brexit: a WTO issue first and foremost, PACT 23 September 2016. Brexit: a WTO issue first and foremost, PACT 23 September 2016
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uncertainty would be weighing on Britain’s trade and inward foreign investment, affecting economic growth. In the long run, hopefully, when bilateral trade agreements between the UK and all its main partners, including of course the EU, came into force, the situation would improve.
Overview of the WTO model Control of Immigration
The UK will have full control over the immigration, as no deal with the EU subsists
Single Market Access
The UK will have no access to the Single Market as no deal with the EU subsist, so it will trade under WTO tarifs
Trade policies
The UK will have full control on its trade, but it will inherit no FTA deal from the EU
Contribution to EU budget
The UK will not contribute to the EU budget, but will lost the access to all the EU projects
Degree of Soveregnity
The UK will have the full legislative indipendence, but thanks to the Great Reapair Bill all the EU legisation will still apply
Prevent UK members leave
Scotaland and Northern Ireland will probably start the process to leave the UK
Fight euroshepticism in EU
The severe outcome will probably will hits the eurosheptic, but there is also the possibility of a fightback, blaming the EU for this outcome
Prevent division within EU countries
This agreement will seriusly harmed the unity of the EU, the EU Institutions and the Visegrad will still ask for a deal on immigration, as the Franco German directorium which also want a strong trade deal
Amoun of negotiations
This schenario is the only one which applies without agreement between the EU and UK, but The UK will have to negotiate the WTO membership and tarrifs
Time to set the new status
From 1 to 5 years to negotiate WTO membership (according to both visions), membership negotiation can start with the trigger of the Article 50, tarrifs can be negotiated only after leaving the EU
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“CETA is the perfect starting point for our discussions with the Commission” David Davis, 14 July 2016
2. Set a Free Trade Agreement A step forwards, but really close to the Hard Brexit will be the model of a Free Trade Agreement between the UK and the EU. This will create a closer integration within the continent, avoiding the comeback to the WTO tarifs at least for the EU or other Countries which will neagotiate someting similar. Many British analysts believe that the size of the British economy (the fifth largest in the world), and its importance to the rest of the EU (the source of 53% of British imports) would ensure that the UK could obtain an FTA on very good terms. Indeed, the US and China already expressed interest in it, New Zeland and Australia438 advanced a concrete proposal. However, the term ‘free trade agreement’ is misleading. Most FTAs do not provide for free trade, but rather for better market access than that provided by WTO rules, also FTAs usually say very little about trade in services. They do not necessarily eliminate tariffs or quotas and almost never deal with nontariff barriers (such as national regulations and standards, consumer protection laws, procurement rules, administrative obstacles) to trade. Some of the recent FTAs negotiated by the EU, such as those with Canada and Singapore, not yet in force at the date of writing, move a little way towards the harmonisation of norms and standards. The only really comprehensive FTA would be the Transatlantic Trade and Investment Partnership (TTIP), currently under negotiation between the EU and the US, but it is likely to be aborted due to the European demonstrations of the civil society, the change of Governments both in EU and US and Brexit itself. Currently then the Comprehensive Economic and Trade Agreement between EU and Canada, so called CETA, is only real reference 438
Australian PM Pushes For a 'Strong' Post-Brexit Trade Deal with the UK Fortune 4 September 2016.
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to quote. This agreement is the only comprehensive Free Trade Agreement finalized by the EU and it would be the model for further similar agreements. Moreover the UK has negotiated with EU the treaty, being also the main Canada commercial partner, so it is a model that they know and approve. Chrystia Freeland439, Canadian Minister of Trade, told media, her team had been having “technical exchanges” with Britain about this possibility440.
Overview of the CETA agreement The negotiations on CETA finished in August 2014 under the European Precidency of Barroso but only in July 2016 the European Commission adopted the text and formally proposed it to the European Council of the EU. A legal review of the text has now been completed, but the agreement is not yet binding under international law. However thanks to a decision on the European Council, it will be possible to provisionally apply CETA in Member States. Its full entry into force through a Council decision with the consent of the European Parliament, and by all Member States through the relevant national ratification procedures. The objective of CETA is to increase bilateral trade and investment flows and contribute to growth in times of economic uncertainty. In line with the European 2020 strategy to boost growth through external competitiveness and the participation in open and fair markets worldwide441. The agreement will cut the tariffs between EU and Canada, set a regulatory cooperation and open the market to the public procurement. Comparing it to a previous and simila agreement the NAFTA (North American Free Trade Agreement of 1994442) which involves US Canada and Messico, CETA even 439
Chrystia Freeland, Minister of International Trade, covered all the CETA negotiations. Being first elected as the Member of Parliament for Toronto Centre in a by-election in November 2013 and then re-elected in October 2015 as the Member of Parliament for University of Rosedale. In opposition she served as her party’s Critic for International Trade. Canada Government. 440 UK turns to Canada for advice on striking post-Brexit trade deals with EU Guardian 15 July 2016. 441 With the 2015 new strategy (developed from the 2014) the European Union aim is to make trade agreements more effective, the new approach is also a direct response to the current intense debate on trade in the EU, in particular the citizen concerns on the Transatlantic Trade and Investment Partnership (TTIP). The programme of trade negotiations foresees: Concluding major ongoing projects like the Doha Round of WTO talks, TTIP, the EU-Japan free trade agreement (FTA) and the EU-China investment agreement. Open new negotiations in the Asia-Pacific region (like Free Trade Agreements with Australia, New Zealand, the Philippines and Indonesia) and plans a deepening of the EU’s relationships with African partners. This includes specifically requesting a mandate from EU Member States for free trade negotiations with Australia and New Zealand. Modernising existing Free Trade Agreements with Mexico and Chile and the Customs Union with Turkey. Trade for All - New EU Trade and Investment Strategy October 2015. 442 North American Free Trade Agreement (NAFTA) US government.
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goes beyond it, said experts443. On services market access, and in particular on Government procurement, the opening to European bidders is unprecedented.
Reducing tariffs The EU and Canada have agreed to gradually eliminate customs duties for imports of goods originating in the both countries either. Tariff reduction and elimination will not overcome rules and regulations on the products on the respective import market444. The tariff reduction package is one of the most comprehensive the EU has ever achieved in the context of an FTA, notably with respect to the elimination of tariffs upon entry into force of the agreement. Overall, the tariffs for 98.6% of all Canadian tariff lines and 98.7% of all EU tariff lines will ultimately be fully eliminated. This will happen at entry into force of the agreement for 98.2% of the Canadian tariff lines and for 97.7% of the EU tariff lines. All other products identified for liberalisation will have their tariffs brought to zero within 3, 5 or 7 years. For a few sensitive agricultural products, there will be a special treatment or an exclusion from any tariff reduction445.
Opening up services and encouraging investment CETA is by far the most far reaching agreement ever concluded by EU in the area of services and investment, within the limitations set out by the Agreement, in particular the reservations listed in Annex I and Annex II, CETA constitutes the most comprehensive trade agreement the EU has ever concluded. It contains commitments on both sides with regards to discriminatory measures and quantitative restrictions across all sectors as well as broad regulatory provisions on key sectors such as environmental services, telecom and finance. Market access is ensured, both at federal level and for the first time provincial level, guaranteeing to EU service providers the benefit of the current market access.
CETA – Summary of the final negotiating results European Commossion February 2016 pg 19. technical, sanitary or phytosanitary rules for the security and the protection of the consumer, the user or the environment, including notably food safety and labelling requirements, CETA – Summary of the final negotiating results European Commossion February 2016 pg 2. 445 CETA - an EU free trade deal fit for the 21st century European Commossion February 2016. 443 444
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Investment protection and investment dispute settlement CETA includes all the innovations of the EU's new approach on investment and its dispute settlement mechanism, making more transparent and institutionalised system for the settlement of investment disputes. It introduces important innovations in this field, ensuring a high level of protection for investors, while fully preserving the right of governments to regulate and pursue legitimate public policy objectives such as the protection of health, safety, or the environment. CETA represents a significant break with the traditional approach to investment protection and settlement of investment disputes in most of the existing bilateral investment treaties worldwide. It removes ambiguities that made the old system open to abuses or excessive interpretations and creates an independent investment court system, consisting of a permanent tribunal and an appeal tribunal that will conduct dispute settlement proceedings in a transparent and impartial manner. The Investment Court System was launched the first time in November 2014 by the commissioner Malmström to replace the investor-state dispute settlement, ISDS, off the negotiating table in January 2014 amid growing opposition in Europe. The EU has the will to turn this arbitration court, which includes 15 judges and an appeals panel of 6 judges, into a multilateral court for all its trade agreements446. The improved system of investment protection and investment dispute settlement included in CETA would replace the 8 existing bilateral investment agreements between EU Member States and Canada. This innovative system became the basis of the future EU trade agreement, like TTIP447 and future one.
Regulatory cooperation Under CETA, the EU and Canada have agreed to set up a Regulatory Cooperation Forum. The Forum will operate as a voluntary scheme to exchange experiences and relevant information among regulators. It will to help identify areas where regulators could cooperate, providing assistance and making suggestions to However, In CETA – as in all its trade agreements – the EU fully protects public services. CETA - an EU free trade deal fit for the 21st century European Commossion February 2016 pg 9. 447 If the TTIP will be signed. Both side of the Atlantic has internal problems: EU has Brexit, US presidential elections. Seems then not probable that the agreement will be signed during the 2016 and after more negotiation will be required. 446
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legislators. However, it will in no way restrict the decision-making power of regulators in both EU (and its Member States) and Canada (and its Member States), saveguarding their soveregnity. Indeed, the Forum will not be able to change existing regulations or develop new legislation. Differences in regulations and standards will remain, and these constitute some of the larger barriers to trade. Closer cooperation will be also ensuring to improve transparency and develop technical regulations, throught the relevant standard-setting bodies. Both sides have agreed to accept the conformity assessment certificates which each other's conformity assessment bodies issue in a number of sectors448. This means a conformity assessment body in the EU can test EU products for export to the Canadian market according to Canadian rules and vice versa.
Mutual recognition of professional qualifications The agreement provides a framework to approve the recognition of qualifications in regulated professions such as architects, accountants and engineers. The relevant professional organisations in the EU and Canada will have to jointly work out the technical details of recognition of their respective qualifications on the basis of the framework. The competent authorities in Canada and the EU will then approve their work and give it legal effect. This means CETA will make easier for firms to move staff temporarily between the EU and Canad, for istance legal, accounting, architectural or similar services. This will help firms to export equipments, machineries and softwares by allowing them to send maintenance engineers and other specialists to provide aftersales and related services and supports.
Government Procurement The CETA achieves a very positive result in respect of public procurement. For the first time, Canadian provinces, territories and municipalities will open their procurement to a foreign partner. In fact, the CETA agreements on the procurement 448
Electrical equipment, toys, machinery, and measuring equipment. CETA - an EU free trade deal fit for the 21st century European Commossion February 2016 pg 18.
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markets is the most comprehensive Canada has made thus far to a Third Country, including the US. The CETA procurement Chapter eliminates a major asymmetry between the EU and Canada, given that the EU was de facto already open to Canadians, including at the sub-federal level, while in Canada the access for foreigners was very limited. However, the treaty guarantees (now in law as well as in fact) to Canadian suppliers a reciprocal access to the European procurement market.
Copyright, Geographical Indications and other issues CETA will create a more level playing field between Canada and the EU in the area of Intellectual Property Rights (IPR) and geographical indications. It will strengthen the protection of copyrights by aligning Canadian rules with those of the EU on protection of technological measures and digital rights management. It will improve how Canada’s IPR system protects patents for EU pharmaceutical products. It will bolster enforcement by foreseeing the possibility of provisional measures and injunctions for intermediaries involved in infringing activities. Canada also agreed to strengthen its border measures against counterfeit trademark goods, pirated copyright goods and counterfeit geographical indication goods. Protection of the designations of the high quality agricultural products of the EU, through the legal protection of Geographical Indications (GIs), is included in the Treaty. Canada accepted that all types of food products proposed by the EU will be protected at a comparable level to that offered by EU law, and that additional GIs can be added in the future. Canada has granted the highest level of protection to the great majority of proposed list of 145 names. A the partial exception was maintained over of 21 names, which conflicted with names already in use in Canada, however tailor-made solutions had already been found. The CETA contains substantive provisions in areas including: labour standards provisions (health and safety at work, and the ratification and implementation of the fundamental ILO Conventions) and a commitment for the effective implementation of Multilateral Environmental Agreements. The
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Agreement both protect the right of each Party to regulate in the labour and environment and guarantees that labour and environmental standards are not misused in a trade context.
The EU-UK relationship on a CETA model David Davis, the new minister for Brexit, called it the “perfect starting point for our discussions with the Commission449” believing that tariff-free access to the EU Single Market can be negotiated on that model. Earlier, also Boris Johnson cited Canada and its trade deal as an example for the UK to follow saing “I think we can strike a deal as the Canadians have done based on trade and getting rid of tariffs. It’s a very, very bright future I see”450. The CETA model gives indeed the market openness and the sovereignty that UK citizens required with the leave vote. The UK would gain the independence in policymaking, as the trade agreement postulate only a regulatory cooperation through the Regulatory Cooperation Forum, without any binding obligations to follow EU regulations. Confirming the current level of harmonised or mutually recognised technical regulations will help to mantain the trade easy without barriers. The right to use trade remedies and state aid (which are actually forbidden in Europe) would be reintroduced if Britain leaves, this is both point in favour but also against a CETA style, where there is no equivalent. In the mind of Brexiter the agreement will create a free trade area, confirming all the current level of 0 tarrifs, takeling at the same time the immigration issue. Only a high level or temporary immigration would be allowed, thanks to the recognization of the skills. No contribution will be sent to the EU, keeping all the money of tax in the UK. Indeed, Johnson continued his speech: „What I think we should do is strike a new free trade deal along the lines of what Canada has just achieved. They have taken out the vast majority of the tariffs and have virtually unencumbered trade. We want a relationship based on trade and cooperation. The
449 450
Global trade deals will be bigger outside than in the EU, says David Davis Guardian 15 July. Boris Johnson on Brexit: 'We can be like Canada' the Gurardian 11 March 2016.
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idea of being subject to the single judicial system is the problem.”451
Critics to the CETA model Cameron said “Trying for a free trade deal doesn’t give us more control, it just means years of painful negotiations and a poorer deal than we have today.” The first critics to the CETA model for EU-UK is this trade is almost eight times the size of Canada’s one with the EU. Less than 30 companies represent the biggest part of all trade between Canada and the EU, while the UK trade with the EU is spread out on several thousands companies involved in direct trade, and several companies selling intermediary goods and services directly to the trading companies. The EU calcultate that it’s Gross Domestic Product (GDP) will grow only of the 0.08 %. Instead, the EU is the UK’s biggest trading partner, accounting for 45% of UK’s exports of goods and services in 2014 and 53% of imports. UK’s firms form part of dense production networks and regional value chains involving many companies in different parts of Europe. While the UK will go out of Europe, Europe cannot be taken out of the UK. For critics this level of involvement demands a much closer form of economic cooperation with Europe than what CETA offers. Second, CETA’s design reflects the industrial profile of trade between Canada and the EU, which is mostly in row material (gold, iron, oils etc) and industrial product. Not exactelly the profile of trade between Britain and the EU, which are dominated by servicies, automotive and high tech. A UK trade arrangement based on CETA would seriously reduce Britain’s current market access in Europe, and the gap between current and future market access will only grow as Europe deepens its single market for capital and the digital economy. CETA also excludes a lot of agricultural products which currently are both imported and exported between the UK and the EU. The access to the Single Market will not allow the UK to set its own rules, having to respect the EU regulation to not create non tarrif barriers. Indeed, CETA annexes are listing hundreds of reservations to free cross-border access in services 451
Boris Johnson on Brexit: 'We can be like Canada' Guardian 11 march 2016.
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and other modes of services delivery. If the UK would adopt the same model, its exporters would be exposed to a raft of new restrictions such as economic-need tests. Moreover they will lose the full right to post intra-corporate transfers in all sectors where EU member states have not agreed to full liberalisation. Outside the Single Market, Britain will lose its current protection against regulation discriminating UK providers of financial services because of their origin. Again there will be a problem with the data flows, as in CETA it is marginally dealt with in a Chapter on e-commerce. Which refers to the WTO provision and proposes a “dialogue” between Canada and the EU on issues like intermediary liability. Yet all other cross-border data flows, going far beyond e-commerce, are simply not parts of CETA. Financial services are excluded from the agreement, so Canadian retail and investment banks. Thus, a tailored new agreement on this needs to be made to allow financiry interchange under similar conditions. The UK Government doesn not have the staff to negotiate the agreement, so it is hiring up to 300 people452. Oliver Letwin, who was going to run the Brexit unit before losing his role in Theresa May’s cabinet overhaul, told the BBC: “We don’t have trade negotiators because the trade negotiation has been going on in the EU so we are going to have to hire a whole – David Davis is going to have to hire – group to deal with the EU negotiations, and Liam Fox, of course, in what I think is an excellent plan of Theresa’s to create a new Department of International Trade.”453 Gregor Irwin, chief economist at the Global Counsel consultancy and a former chief economist at the Foreign and Commonwealth Office, said the UK Government had people who understood trade policy, but did not have negotiators. Chrystia Freeland she said that securing such deals was “very, very complicated. There are 300 trade negotiators in Canada. It takes a big expert team to negotiate trade agreements.” An other problem is the time of negotiation, the CETA took 7 years to be negotiated, and probably it will take other 2 years to be officially ratified, so it is
452 453
UK turns to Canada for advice on striking post-Brexit trade deals with EU Guardian 15 July 2016. UK turns to Canada for advice on striking post-Brexit trade deals with EU Guardian 15 July 2016.
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not clear when and if it will enter into force454. The UK does not have the expertise to negotiate trade deals, as the decade which took the CETA agreeement. Finally, the UK will have to create FTAs with other countries. This system solves only the problem with the EU but not with the other commercial parterns of the UK. The US, Australia, India, Canada itself will have to negotiate similar agreements, or using the WTO stadards. Damian Collins, a Tory MP campaigning to remain in the EU, pointed out the Canadians are continuing to face uncertainty around the trade deal seven years into the process, saying it was “not a good example for the UK to follow”455 Overview of the FTA model Control of Immigration
The UK will have full control over the immigration, only temporary movement will be allowed
Single Market Access
The UK will have access to the Single Market (with special provision covering service and capitals), but with the rest of the world it will trade under WTO tarifs
Trade policies
The UK will have full control on its trade, but will have to negotiate its FTA as well as the WTO membership and tarrifs
Contribution to EU budget
The UK will not contribute to the EU budget, but will lost the access to all the EU projects
Degree of Soveregnity
The UK will have the full legislative indipendence but a degree of harmonization will be required to trade with the EU, thanks to the Great Reapair Bill all the EU legisation will still apply
Prevent UK members leave
Northern Ireland will less probably start the process to leave the UK, Scotland instead will probably pursue it
Fight euroshepticism in EU
The outcome will probably will hits the eurosheptic in the eurozone, but the others european countries will start to think about asking the same
Prevent division within EU countries
This agreement will slightly harm the unity of the EU, the EU Institutions and the Visegrad will still ask for a deal on immigration
Amoun of negotiations
The UK will have to negotiate the deal with the EU, the WTO membership and tarrifs
Time to set the new status
Up to 2 years to negotiate agreements, regular negotiation can start with the trigger of article 50 TEU
454
The ratification process is now facing the Member States, more than one have already declared to held a referendum on it, due to the pressing made by the movement anti TTIP and CETA. If it will be rejected by a member state, the CETA will be not valid. 455 Boris Johnson on Brexit: 'We can be like Canada' Guardian 11 march 2016.
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A Custums Union (Turkey model) A minor brother of the Free Trade Agreement is a Custum Union, like the one in place between Turkey and the EU since 1995. A Customs Union eliminates internal tariffs and requires the participating countries to agree on common external tariffs (thanks to this Turkey can have access to the Europan Single Market). The Customs Union covers all industrial goods but does not address agriculture456, services or public procurements (Chapter I Article 2 EC-Turkey association457). Chapter I, Article 2 - Decision no 1/95 of the EC-TURKEY association Council of 22 This Chapter shall apply to products other than agricultural products as defined in Article 11 of the Association Agreement. The special provisions relating to agricultural products are set out in Chapter II of this Decision.
Turkish economy is based on the manufactured so this option but the UK ones is formed mainly of services. Thus this model would not fit for the UK, unless it was extended with another specific agreement to cover services and capitals. Following the Commission's proposal on "extending and deepening" the Customs Union, in November 1996 the Council agreed to negotiate guidelines on the liberalisation of services and public procurement between the EU and Turkey. Negotiations were, however, suspended in 2002458. The Customs Union foresees that Turkey has to align its policy in several essential internal market areas, notably with regards to industrial standards (Session II, article 54 EC-Turkey association). The UK, as Turkey does, will not be free to adopt its own tariffs, because it would have to follow decisions on tariffs made by the EU. The UK sovereignty will be again reduced. UK-based manufacturers would have to comply with EU product standards, and the UK would have to accept large sections of the EU’s acquis communautaire and competition policy, and its future evolution. If the UK resisted this, the EU might suspend market access or impose anti-dumping duties, to prevent British firms undercutting continental compe titorsthrough subsidies or deregulatory measures. 456
Except processed agricultural products chapter II, and successive bilateral trade concessions apply to agricultural products. Europan Commission DG Trade - Turkey. 457 Decision no 1/95 of the EC-TURKEY association Council of 22, European Council, 22 December 1995 458 Turkey has been a candidate country to join the European Union since 1999, and is a member of the Euro-Mediterranean partnership. Thus negotiations to address also capital market and service maket have been made in this different contest.
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Session II, Article 54 decision no 1/95 of the EC-TURKEY association Council of 22 1. In areas of direct relevance to the operations of the Customs Union, and without prejudice to the other obligations deriving from Chapters I to IV Turkish legislation shall be harmonized as far as possible with Community legislation. 2. Areas of direct relevance to the operation of the Customs Union shall be commercial policy and agreements with third countries comprising a commercial dimension for industrial products, legislation on the abolition of technical barriers to trade in industrial products, competition and industrial and intellectual property law and customs legislation. The Association Council may decide to extend the list of areas where harmonization is to be achieved in the light of the Association's progress Session II, article 55 decision no 1/95 of the EC-TURKEY association Council of 22 1. Wherever new legislation is drawn up by the Commission of the European Communities in an area of direct relevance to the operation of the Customs Union and the Commission of the European Communities consults experts from Member States of the Community, it shall also informally consult Turkish experts. 2. When transmitting its proposal to the Council of the European Union, the Commission of the European Communities shall send copies thereof to Turkey. 3. During the phase preceding the decision of the Council of the European Union, the Parties shall, at the request of either of them, consult each other again within the Customs Union Joint Committee. 4. The Parties shall cooperate in good faith during the information and consultation phase with a view to facilitating, at the end of the process, the decision most appropriate for the proper functioning of the Customs Union. Session II, article 56 decision no 1/95 of the EC-TURKEY association Council of 22 1. Where it adopts legislation in an area of direct relevance to the functioning of the Customs Union as defined in Article 54 (2), the Community shall immediately inform Turkey thereof within the Customs Union Joint Committee to allow Turkey to adopt corresponding legislation which will ensure the proper functioning of the Customs Union. 2. Where there is a problem for Turkey in adopting the corresponding legislation, the Customs Union Joint Committee shall make every effort to find a mutually acceptable solution maintaining the proper functioning of the Customs Union.
In addition, a Custom Union provides a common external tariff for the products covered. The UK will continue to not have a say on the decision of the EU. The agreement contains only a mare EU commitment to consult informally Turkish experts, during the process of legiferation (Session II, article 55 and 56 ECTurkey association). Moreover, Turkey does not have a say on the FTAs that the EU negotiates with other countries, and does not benefit from them. For instance, after the recent EU FTA with the Republic of Korea (South Korea), Turkish exporters do not have access to the Korean market, yet Korean exporters have automatic access to the Turkish market through the EU countries. Similarly, Turkey will not have access to US or Canada countries markets. This can be seen however as an advantage, leaving the UK free to establish its own agreements459, but again, 459
Turkey has signed Free Trade Agreements with EFTA, Israel, the Former Yugoslav Republic of Macedonia, Croatia, Bosnia-Herzegovina, Tunisia, Morocco, the Palestinian Authority, Syria, Egypt, Georgia, Albania, Montenegro, Serbia,
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the time and efforts to establish trade agreements or rejoin the WTO will be consistent. The agreement establishes an arbitration procedure to setle the disputes (article 61 and 62 EC- Turkey association) but the interpretation of the agreement as well as the product covered, are demanded to the ECJ (article 66 EC- Turkey association). Overhelming then the power of the national court. Regarding the free movement of people, no provision is settled by the agreement or other agreemets, thus a full power of decision over the immigration is retain by the Ankara Government and EU capitals. The Turkish model would provide only limited access to the EU’s internal market, yet would deprive the UK of sovereignty on trade policy. It is therefore hard to see how it could be attractive to the UK. Overview of the Customs Union model Control of Immigration
The UK will have full control over the immigration, only temporary movement will be allowed
Single Market Access
The UK will have accessto the Single Market (without special provision for services and capitals), with the rest of the world it will trade under WTO tarifs
Trade policies
The UK will have full control on its trade, but will need to negotiate its FTAs as well as the WTO membership and tarifs. However, the UK will suffer indireclty the EU FTAs, risking to lost its negotiational power
Contribution to EU budget
The UK will not contribute to the EU budget, but will lost the access to all the EU projects
Degree of Soveregnity
The UK will have the full legislative indipendence but a high degree of harmonization will be required to trade with the EU, thanks to the Great Reapair Bill all the EU legisation will still apply
Prevent UK members leave
Northern Ireland will less probably start the process to leave the UK, Scotland instead will probably pursue it
Fight euroshepticism in EU
The outcome will probably will hits the eurosheptic in EU
Prevent division within EU countries
This agreement will slightly harm the unity of the EU, the EU Institutions and the Visegrad will still ask for a deal on immigration, as the Franco German directorium which also want a strong trade deal
Amoun of negotiations
The UK will have to negotiate the deal with the EU, the WTO membership and tarifs
Time to set the new status
Up 1 year to negotiate agreements, regular negotiation can start with the trigger of article 50 TEU
Chile, Jordan and Lebanon. Moreover, Turkey is member of the Euro-Mediterranean partnership (Euromed) and as such should conclude free trade agreements with all other Mediterranean partners, with a view to the creation of a EuroMediterranean free trade area. The Euro-Mediterranean Partnership promotes economic integration and democratic reform across 16 neighbours to the EU’s south in North Africa and the Middle East. One important part of this work is to achieve mutually satisfactory trading terms for the Euromed region's partners. Europan Commission DG Trade - Turkey
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“ We pay, but have no say: that’s the reality of Norway’s relationship with the EU” Espen Barth Eide, 2015
3. Join the EFTA More EU-inclusive relation is guaranteed under the existing type of associated countries to the European Union. As seen before, EU has a custom union with Turkey, but deeper relationship existed with nations gathered under the European Free Trade Association (EFTA), an intergovernmental organisation set up for the promotion of free trade and economic integration, currently formed by four nations: Iceland, Liechtenstein, Norway and Swiss. Inside the EFTA, there are two levels of coordination with the EU, the first is represented by the EEA, which members are Iceland, Liechtenstein, and Norway. And a second one, formed only by the Swiss, which refused the level of involvement of the EEA, preferring to sign more than 100 different agreements to reach almost the same results. In 1960, the EFTA was created by Britain as counterbalance to the European Community. In 1973, when the UK joined the EEC with other countries but Norway and Switzerland stayed in EFTA. Inside the EU, UK became an influential player, one of the big three, but also one of its least integrated members. Outside, Norway became by far the most closely integrated non-EU country, but with no say on the legislations.
EFTA - European Free Trade Association On 4 January 1960, Austria, Denmark, Norway, Portugal, Sweden, Swiss and the United Kingdom signed in Stockholm a Convention to establish the EFTA460. The association was joined by Finland in 1986, Iceland in 1970 and Liechtenstein in 1991; while losing Denmark and United Kingdom in 1973, Portugal in 1986, 460
A new and more comprehensive EFTA Convention was signed in Vaduz in 2001.
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Austria, Finland and Sweden in 1995. All of these countries joined at the same time the EEC. The present Convention, frequently referred to as the Vaduz Convention, covers all the important aspects of modern trade, including provisions on the free movement of persons, trade in services, movement of capital and protection of intellectual property. It has led to a strengthening of economic relations between the EFTA Member States and also provides an enhanced common platform for developing relations with trade partners around the world. EFTA today maintains the management of the EFTA Convention (intra-EFTA trade), the EEA Agreement (EFTA-EU relations), and the EFTA Free Trade Agreements (third country relations). EFTA Milestones 1960
The European Free Trade Association is founded by Austria, Denmark, Norway, Portugal, Sweden, Switzerland and the United Kingdom to promote closer economic cooperation and free trade in Europe.
1961
Finland becomes an associate member of EFTA. The EFTA Consultative Committee is established (representatives of trade unions and employers’ organisations).
1966
Full free trade in industrial products is achieved between the EFTA States
1970
Iceland becomes a member of EFTA
1973
Denmark and the United Kingdom leave EFTA to join the EEC. The remaining EFTA States sign bilateral free trade agreements (FTAs) with the EEC in the 1970s.
1977
The EFTA Parliamentary Committee is established. Tariffs on industrial goods in trade are eliminated between the EEC and the EFTA States.
1979
EFTA’s first FTA is signed with Spain.
1984
The Luxembourg Declaration on broader cooperation between the EEC and EFTA is signed.
1985
Portugal leaves EFTA to become a member of the EEC.
1986
Finland becomes a full member of EFTA.
1989
Negotiations start on a European Economic Space, later to become the EEA. The EFTA States sign an agreement on free trade in fish.
1991
Liechtenstein becomes a member of EFTA. An FTA is signed with Turkey, EFTA’s oldest agreement still in force. A further twelve FTAs are signed in the 1990s, of which three are still in force (Israel, Morocco and the Palestinian Authority). The others, all of which are with Central and Eastern European countries, lapse upon their accession to the European Union (EU).
1992
The Agreement on the European Economic Area (EEA Agreement) is signed in Porto, Portugal. Switzerland rejects participation in the EEA by referendum.
1994
The EEA Agreement enters into force between the EU and five EFTA States (Austria, Finland, Iceland, Norway and Sweden). An EEA financial mechanism for the reduction of economic and social disparities in the EEA is established for the period 1994-1998.
1995
Austria, Finland and Sweden leave EFTA to join the EU. Liechtenstein becomes a full participant in
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the EEA Agreement. 2000
A new EEA financial instrument is established for the period 1999-2003. Eight FTAs are signed between 2000 and 2004 (in chronological order: Macedonia, Mexico, Croatia, Jordan, Singapore, Chile, Lebanon and Tunisia)
2001
The updated EFTA Convention is signed in Vaduz, Liechtenstein, entering into force a year later.
2003
An agreement on EEA enlargement in 2004 is signed as ten Central and Southern European countries join the EU. New EEA and Norwegian financial mechanisms are established for the period 2004-2009.
2005
FTAs are signed between 2005 and 2009, in chronological order: Republic of Korea, Southern African Customs Union, Egypt, Canada, Colombia, Albania, the Gulf Cooperation Council and Serbia.
2007
An agreement on EEA enlargement is signed as Bulgaria and Romania join the EU.
2009
Iceland applies for EU membership. New financial mechanisms are agreed for the period 2009-2014.
2010
The EEA EFTA Forum of Elected Representatives of Local and Regional Authorities is established. FTAs are signed with Peru and Ukraine.
2011
FTAs are signed with Hong Kong China and Montenegro.
2012
Member States agree on further liberalisation of trade in agricultural products
2013
Two FTAs are signed: with Bosnia and Herzegovina, and with Costa Rica and Panama.
2014
An agreement on EEA enlargement is signed to include Croatia. And FTA negotiations are concluded with Guatemala.
2016
Croatia left EFTA and entered in the Europan Union
The EFTA Convention effectively applies to relations between Switzerland and the EEA EFTA States, as trade relations between Iceland, Liechtenstein and Norway are largely governed by the EEA Agreement. It is updated regularly by the EFTA Council to reflect common developments under the EEA Agreement and the Swiss bilateral agreements with the European Union (EU), ensuring that the EFTA States benefit from virtually the same privileged relationship among themselves as they do with the EU.
The four freedoms EFTA ensured the four freedoms, the free movement of goods, services, capital and persons, within its members. As first, it set a free trade area between the members, eliminating the customs duties on imports and exports. Any changes in the counties policies having effect to limit the trade are therefore prohibited (Article 3) as well as quantitative restrictions461 (article 7), internal taxation against the other
461
Special provisions are set for agriculture, fisheris, sanitary goods and excepions and saveguards are also set in the other cases.
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countries’ goods (article 4), anti-dumping measures. Moreover, countervailing duties and measures against illicit commercial practices attributable to third countries shall not be applied in relations between the Member States (article 36). On the service market apply similar rules, restrictions on the right to supply services within the territory of the Members are forbidden (Article 29). However, no obligations are set for public procurement (article 34) except the one of the WTO (article 37). State aid is regulated by WTO and EU provisions462 and rules on monopoly and competition must not be incompatible with the Convention (articles 16 and 17). Protection of intellectual property is grant by (article 19) as well as foreigner investments463 (article 23 and 24). Finally, financial market equality (article 25 and 31) and capital movement (article 25) are fully part of the Treaty. Under the EFTA, member states allow their citizens to freely move among the other Member States464 (articles 20 and 21), ensuring them also the possibility to find an employment, thanks to the mutual recognization of professional qualifications (article 22). Complementary to this, all the EFTA members are also members of the Schengen Treaty465, cancelling so the border controls between their members. Furthermore, through EFTA, its Member States have created one of the world’s largest networks of preferential trade relations, which they continue to extend and upgrade. The EFTA current network of FTAa secures economic operators preferential access to markets of around 720 million consumers outside the European Union. EFTA currently has 25 FTAs with a total of 35 partners outside the EU466, and other negotiations have been concluded467 or are in advanced progress468. The EFTA is also reviewing and comprehensively updating a number 462
For the members of EEA the state aide is forbidden. The treaty establishes the rule of the national treatement: Member States shall grant treatment no less favourable than that accorded to their own companies or firm, regulations do not discriminate against companies or firms of the other Member States in comparison to its own companies or firms. 464 With the provisions set out in Annex K and in the Protocol to Annex K on the free movement of persons between Liechtenstein and Switzerland. 465 Schengen: Controversial EU free movement deal explained BBC 24 April 2016. 466 Albania, Bosnia and Herzegovina, Canada, the Central American States of Costa Rica and Panama, Chile, Colombia, Egypt, the Gulf Cooperation Council (GCC; comprising Bahrain, Kuwait, Oman, Qatar, Saudi Arabia and the United Arab Emirates), Hong Kong China, Israel, Jordan, the Republic of Korea, Lebanon, Macedonia, Mexico, Montenegro, Morocco, the Palestinian Authority, Peru, Serbia, Singapore, the Southern African Customs Union (SACU; comprising Botswana, Lesotho, Namibia, South Africa and Swaziland), Tunisia, Turkey and Ukraine. 467 Guatemala. 468 Negotiations are in progress with India, Indonesia, Malaysia and Vietnam. Negotiations with Algeria, the Customs Union of the Russian Federation, Belarus and Kazakhstan, Honduras and Thailand are on hold. Negotiations with the Philippines are set to start in spring 2015 and with Georgia in a timeframe yet to be determined. 463
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of existing FTAs469 and putting in place joint declarations on cooperation (JDCs)470. These instruments provide for a framework of dialogue and cooperation towards closer trade and investment relations. EFTA’s Worldwide Network
This is EFTA 2015 EFTA Pubblications
Legilative Cooperation The EFTA is also fostering legilative cooperation in various sector: origin and administrative cooperation (article 5), technical regulation (article 14), recognition of conformity assessmets (article 15), economic and monetary policy (article 42). Moreover, an arbitration court is settled to solve dispute between Member States (articles 46 to 48). This function is, however, mostly implemented by the EEA, which coordinate the policy with the EU.
How EFTA Works The EFTA Council manages relations between the EFTA States and the application of the Convention (article 43 to 45). It is the forum in which the Member 469
Canada, Mexico and Turkey. Mauritius, MERCOSUR (comprising Argentina, Brazil, Paraguay and Uruguay), Mongolia, Myanmar and Pakistan. In 2013 EFTA established a trade policy dialogue with the United States. 470
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States consult each other, negotiate and act together. The Council policy-making mandate is broad. The policies are designed to promote the overall objectives of the Association and to facilitate the development of links with other states and international organisation. The Council is also responsible for administrative and budgetary matters within The EFTA. The Council normally meets twice a year at ministerial
level
to
provide EFTA Council Structure
political guidance to EFTA work. During the summer meeting, the EFTA Ministers discuss free trade relations and developments under the
EEA
Agreement.
An
additional meeting devoted to free trade relations is usually held towards the end of the year. Between the ministerial meetings the
Council
convenes
at
ambassadorial level. A number of - This is EFTA 2015 EFTA – EFTA Pubblications
specialised committees assist and
report directly to the Council471. They also meet occasionally with their counterparts in countries where The EFTA has free trade relations472. The EFTA Secretariats are realy important: the EFTA Convention and EFTA free trade agreements are managed by the Geneva office, while the Secretariat in Brussels coordinate the regulatory works with the EU. Especially it works on the standardisation policies, through the participation to different dedicated ogranisation473. The EFTA States and the European Commission cooperate closely 471
The Committee on Third-Country Relations, for instance, oversees the functioning and development of free trade and cooperation agreements with countries outside the European Union. The Committee of Customs and Origin Experts deals with cooperation in the field of customs. The Committee on Trade Facilitation seeks to improve procedures and reduce costs in cross-border trade. The Committee on Technical Barriers to Trade advises the Council on policy and financial issues regarding standardisation, conformity assessment and other issues related to technical legislation. The EFTA Board of Auditors is the auditing authority for the EFTA Secretariat. The Budget Committee assists the Council in budgetary matters. Finally, a number of committees manage the updating of the EFTA Convention. This is EFTA 2015 EFTA Pubblications 472 For details of the EEA EFTA Forum of Elected Representative. 473 The EFTA States, in partnership with the European Commission, financially support the development of standards-related work carried out by the European Standardisation Organisations (ESOs) where EFTA Secretariat has the status of European Counsellor; CEN, the European Committee for Standardization; CENELEC, the European Committee for Electrotechnical
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to develop and implement European standardisation policy. Organisational Chart of the EFTA Secretariats
This is EFTA 2015 EFTA – EFTA Pubblications
EFTA-EEA contribution to the EU budget EFTA Budget 2015 (in CHF)
Contributions to the EFTA Budget
EFTA Council and horizontal activities
2 098 000
Iceland
578 671
Administration and management
3 613 000
Liechtenstein
208 702
Trade relations with countries outside the EU
4 589 000
Norway
EU/EFTA and EFTA cooperation programmes
2 896 000
Switzerland
EEA-related activities
8 141 000
Total
EFTA-EU statistical cooperation Total
12 383 988 8 979 639 22 151 000
814 000 22 151 000 This is EFTA 2015 EFTA Pubblications
The direct contribution of EFTA budget to the EU programme for the 2015 was 3.710.000 Swiss Franc (something more of 4 million euro), without counting
Standardization; and ETSI, the European Telecommunications Standards Institute. Financial contributions are also made to other organisations in support of European standardisation. These organisations include ANEC, the European association for the coordination of consumer representation in standardisation; ECOS, the European Environmental Citizens Organisation for Standardisation; and EOTA, the European Organisation for Technical Approvals. Specific visibility projects that EFTA cofinances with the EU include the secondment of European standardisation experts to China and India, and also to CESIP, the Europe-China Standards Information Platform. CESIP is an information tool that aims at strengthening mutual trade between Europe and China by making standards and related technical regulations more accessible. European accreditation policy is governed by Regulation (EC) No 765/2008 which for the first time established a common legal basis for accreditation, thereby providing a comprehensive legal framework for regulating the organisation of accreditation within the EEA. This is EFTA 2015 EFTA Pubblications.
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the shared expances which involves the works of the organisations and the Grants474 If the UK were merely to rejoin the EFTA, it would achieve very few economic benefits with the EU. Given the development both of the EEA and of bilateral relations between Switzerland and the EU, the FTA between the EU and the EFTA has become almost an empty shell, containing little of substance. The FTA covers only trade for some fish and agricultural products, and no services at all. It is not linked to either the EEA, or to the 1972 trade agreement (modified several times) between Switzerland and the EU. Thus, joining the EFTA would do very little to provide British firms with preferential access to key European or other export markets. However the EFTA membership would give the UK access (if requested) to the FTAs concluded between the EFTA states and Third Countries. Having so an important stating platform for the UK trade. To conclude the analysis on the EFTA it is important to look at the two mobels of relations with the UE and the EFTA Members. The split happened in the ‘80, when Iceland, Liechtenstein and Norway decided to make an agreement with the EU, accessing to the EU Single Market, while Swiss decided to negotiate directly with the EU bilateral agreements.
The EEA Agreement The EEA entered into force on 1 January 1994, extending the Single Market of the European Union to three of the EFTA countries: Iceland, Liechtenstein and Norway. The EEA Agreement extends the four freedoms (movement of goods, services, capital and persons) to the EU member states and vice-vers. It provides for the application of EU legislation covering common rules on competition and state aid, to the EEA States. In addition, it covers cooperation in important areas such as research and development, education, social policy, environment, consumer protection, tourism and culture policies. Therefore, the EEA Agreement guarantees equal rights and obligations within the Single Market for citizens and economic 474
EEA Grants and Norway Grants contribute to reducing economic and social disparities in the EEA and to strengthening bilateral relations between the three EEA EFTA States and sixteen beneficiary countries in Central and Southern Europe: Bulgaria, Croatia, Cyprus, Czech Republic, Estonia, Greece, Hungary, Latvia, Lithuania, Malta, Poland, Portugal, Romania, Slovakia, Slovenia and Spain. This is EFTA 2015 EFTA Pubblications.
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operators in the EEA, exluding: Common Agriculture and Fisheries Policies, Customs Union, Common Trade Policy, Common Foreign and Security Policy, Justice and Home Affairs (the EFTA States are, however, part of the Schengen area), Economic and Monetary Union (EMU).
The EEA-EU relations The four freedoms between EU and EEA are clearly secured under the EEA Agreement. Working specularly to the EFTA and EC Treaties475, the EEA provides the free movements of goods (part II)476, services (part II Chapter 3), capitals (part II Chapter 4), and persons (part II Chapter 1 and Annex V). Concerning the free movement of persons, it usefull to remark that all the EFTA members are also member of the Shengen area. The EEA EFTA
EFTA relationship with the EU
Member States have not transferred directly any
legislative
competencies to the EEA
Institutions.
However,
the
EEA
Agreement established EEA EFTA bodies to align its policies to the This is EFTA 2015 EFTA Pubblications
EU ones. The structure
of the EEA EFTA bodies is built on the the EU model. The decision-making process is characterised by four mixt bodies, with representatives of both EEA EU, which take the decisions relating to the EEA Agreement and its operation. This structure is designed to align EEA EFTA legislations as closely as possible with EU legislation. Whenever the European Union adopts or amends an act related to the Single Market, the contracting parties have to evaluate its 475 476
Regarding in particular the provisions forbidding aid state, good duties, and discriminations to foreigner products. With special provision for fisheries and agricoltular productd (part II chapter 2) plus coal and steel (protocols 14 and 25).
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relevance, with a view to amending the applicable annexes to the EEA Agreement. The EU legislation is incorporated into the EEA Agreement through the adoption of an EEA Joint Committee Decision, and subsequently implemented by the EEA EFTA States at national level477. This permits the harmonious development of law in both within the EU and in the EEA EFTA States, allowing the EEA EFTA States to maintain the access to the Single Market. The decision making process is unilaterally, in fact the EEA EFTA States do not have the right to participate in the political decision making within the EU Institutions. However, the EEA Agreement does provide the EEA EFTA State a level of involvement in the EU legislative process. EEA EFTA experts can participate at the European Commission’s expert groups and comitology committees. These expert groups advise and assist the Commission with the drafting of new laws, which the EU Council of Ministers and the European Parliament subsequently adopt. The participation of EEA EFTA experts and representatives in over 500 of these committees and expert groups is a valuable and much appreciated opportunity to acquire information and contribute to new legislative proposals at EEA-EU funds commitment for 2014-2020 MFF
the preparatory stages of policy formation.
Partecipation of EEA to the EU budget Through the EEA Agreement (part IV), the EEA EFTA States participate in a wide range of EU programmes, projects and networks, from youth exchange and research programmes to public health and the development of digital contents478. The EEA EFTA States contribute This is EFTA 2015 EFTA Pubblications
477
Currently, more than 10 000 EU legal acts have been incorporated into the EEA Agreement since the signing in 1992: 1875 acts incorporated at the time of signing. More than 7900 acts incorporated by decisions of the EEA Joint Committee (of which 483 in 2015 and 627 in 2014). More than 1000 acts incorporated by simplified procedure in the veterinary area. Out of these acts, around half are currently in force in the EEA. EFTA statistics An overview of adopted EU acts marked EEA relevant is available in the Official Journal of the EU with EFTA proposing an abstract. 478 During the 2014-2020 programme period, the EEA EFTA States are participating in the following EU programmes (highest budget first): Horizon 2020 (EU framework programme for research and innovation); Erasmus+ (EU programme for education, training, youth and sport); Galileo (European satellite navigation programme); Creative Europe (EU framework programme for culture and media); Connecting Europe Facility (Information and Communication Technologies
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financialy to the programmes budgets. Moreover, the EEA EFTA participate in several of EU decentralised or executive agencies479, mostly with the scope to implement EU policies. The EEA EFTA States participate in 13 programmes under the MFF 20142020, either fully or partially. The EEA EFTA funds commitment to the new MFF is approximately EUR 3.22 billion according to forecasts made at the beginning of the period, covering around the 3% of total ammounts of the programme. The contribution has doubled compaging it with the one made in 2006 to the previous MFF 2007-2013, which was EUR 1.7 billion, around. The financial contributions of the EEA EFTA States to the EU related to the EEA Agreement are compessively 860 million euro per year. 400 million euro are designated to the EEA Grants and Norway Grants, aimed to reduce economic and social disparities in the EEA. Second, the EEA EFTA States contribute towards the EU programmes and agencies, contributing with around 460 million per year480.
The EEA Institutions The structure of the association (Part VII) find as main body the EEA Council, which meets twice a year and provides the political imputs. The EEA EFTA States are represented in the EEA Council by their respective foreign ministers. The European Union is represented by the rotating presidency, as well as the European External Action Service (EEAS) and the Commission. EEA EFTA States can also have a say (Part VII Chapter 2) thanks to the Joint Committee, which is responsible for the management of the EEA Agreement and
(ICT) part); European Statistical Programme 2013-2017 (EU programme to further the development of the European Statistical System (ESS)); Health for Growth (EU programme to implement the EU health strategy); Union Civil Protection Mechanism (EU programme to prevent and prepare for disasters) Interoperability Solutions for Public Administrations (ISA) Programme; Employment and Social Innovation (EU programme to support employment, social policy and labour mobility); Consumer Programme (EU programme to implement EU consumer policy); Copernicus (European Earth observation programme); Programme for the Competitiveness of Enterprises and Small and Medium-sized Enterprises (COSME); Rights, Equality and Citizenship Programme (EU programme to promote gender equality and children’s rights, and to combat all forms of discrimination). 479 European Agency for Safety and Health at Work; European Aviation Safety Agency; European Centre for Disease Prevention and Control; European Centre for the Development of Vocational Training; European Chemicals Agency; European Environment Agency; European Food Safety Authority; European Foundation for the Improvement of Living and Working Conditions; European Global Navigation Satellite Systems (GNSS) Agency; European Maritime Safety Agency; European Medicines Agency; European Network and Information Security Agency; European Railway Agency. This is EFTA 2015 EFTA Pubblications. 480 Frequently asked questions on EFTA and the EEA – EFTA website.
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typically meets seven to eight times a year. Part VII, Chapter 2, Article 100 – EEA Treaty The EC Commission shall ensure experts of the EFTA States as wide a participation as possible according to the areas concerned, in the preparatory stage of draft measures to be submitted subsequently to the committees which assist the EC Commission in the exercise of its executive powers. In this regard, when drawing up draft measures the EC Commission shall refer to experts of the EFTA States on the same basis as it refers to experts of the EC Member States.
Within this forum views are exchanged and decisions are taken by consensus to incorporate EU legislation into the EEA Agreement. Before the Lisbon Treaty, the EEA Joint Committee comprised the ambassadors of the EEA EFTA States and representatives of the European Commission. In accordance with the Treaty of Lisbon, responsibility for coordinating EEA matters on the EU side was moved from the European Commission to the European External Action Service following its launch on 1 December 2010. The relations between the EEA States are dicussed inside the Standing Committee of the EFTA (formed by five subcommittees and several working groups.), where States consult each other to find a common position before meeting with the EU in the EEA Joint Committee. It consists of the ambassadors to the EU of Iceland, Liechtenstein and Norway, and observers from Switzerland and the EFTA Surveillance Authority, ESA. Which ensures that Iceland, Liechtenstein and Norway meet their obligations under the EEA Agreement (in the same way that the EU Member States are supervised by the European Commission) and the respect of competition rules. Infringement actions with regard to the implementation, application or interpretation of an EEA rule could be challenged to the EFTA Court (which corresponds to the Court of Justice of the European Union in matters relating to the EEA EFTA States). The Court also handles the settlement of disputes between two or more EEA EFTA States. It hears appeals against decisions taken by ESA and gives advisory opinions to courts in the EEA EFTA States on the interpretation of EEA rules. Other coordination bodies between EEA and EU are the Joint Parliamentary Committee (formed by members of the national parliaments of the EEA EFTA States and Members of the European Parliament) and the Consultative Committee (members of the EFTA Consultative Committee and of the European Economic and 204
Social Committee.). They are not directly involved in the EEA decision-making process, but through reports, advisory opinions and resolutions, try to influence EU policies and decisions. Also the EEA EFTA Forum of Elected Representatives of Local and Regional Authorities maintain close contacts with Committee of the Regions of the EU.
The EEA model Norway is alwasy used as example for this model, not only because is the biggest country of the EFTA-EEA, but also because is has a similar approach to EU (access to the single market but not politcal integration). In fact, Norway completed its negotiations for the EEC membership on 22 January 1972, but a popular referendum voted against membership (53.5% to 46.5%). Again in 1995, when Austria, Finland and Sweden joined the EU, Norway voted to stay out. Since then, the EEA has become Norway national compromise on Europe. As an EEA member, Norway has access to the Single Market, while it does not participate in decisionmaking in Brussels. Indeed, Norway contributed to the EU budget and have incorporated approximately three-quarters of all EU legislative acts into Norwegian legislation, allowing so the free movement of goods, capitals and services. Those endorsing the Norwegian way can correctly claim that it can retain access to the Single Market even from outside the EU, through the participation to the EEA. Moreover, the UK could continue to maintain its participation to European programmes. But it is not only a matter of the relationship with the EU. Join the EFTA will also confirm the relation with the four EFTA countries (especially Switzeland which has expecial financial relationship with the UK) and extend to the UK a consolidate world trade framework, without necessity to renegotiate trade agreements. The UK could also choose which agreements choose to participate, as the EFTA States are not obliged by the EFTA Convention to conclude preferential trade agreements as a group. They maintain the full right to enter into bilateral third-country arrangements481. 481
Frequently asked questions on EFTA and the EEA – EFTA website.
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Critics to the EEA model Critics to the EEA model argue that the price to pay will be the contribution to the EU budget, which is however basically destinated to the EU project involving also the UK, and to the EFTA-EEA budget. Under similar circumstances, the UK, given its size, would probably pay between 2.5 billion and 4 billion euro a year, which is close to half of its current net contribution the EU budget482. Avoiding to contribute to the EU budget is one of the reason of the Leave, such an agreement would so be contestated. More important, the UK will substantially loose its sovereignty, being obliged to retain and to adopt in the future all the EU legislation, on product standards, finance, and employment. Even if an influence of EFTA-EEA members to the EU is keep by the Joint Committees and the participation to the working groups of the European Commission, the UK will loose al the MEPs and the power it has now. The UK would have access to the Single Market for trade in goods under the Norwegian model. However, the EEA is currently making slow progress in incorporating EU legislation on financial services; as a result of the differences in Part IX, Article 128 - EEA Treaty 1- Any European State becoming a member of the Community shall, and the Swiss Confederation or any European State becoming a member of EFTA may, apply to become a party to this Agreement. It shall address its application to the EEA Council. 2- The terms and conditions for such participation shall be the subject of an agreement between the Contracting Parties and the Applicant State. That agreement shall be submitted for ratification or approval by all Contracting Parties in accordance with their own procedures. Part IX, Article 129 - EEA Treaty 1- This Agreement is drawn up in a single original in the Danish, Dutch, English, Finnish, French, German, Greek, Icelandic, Italian, Norwegian, Portuguese, Spanish and Swedish languages, each of these texts being equally authentic 2- This Agreement shall be ratified or approved by the Contracting Parties in accordance with their respective constitutional requirements. It shall be deposited with the General Secretariat of the Council of the European Communities by which certified copies shall be transmitted to all other Contracting Parties. The instruments of ratification or approval shall be deposited with the General Secretariat of the Council of the European Communities which shall notify all other Contracting Parties. 3- This Agreement shall enter into force on the date and under the conditions provided for in the Protocol Adjusting the Agreement on the European Economic Area.
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No power, no influence and we would still have to pay the bill Guardian 16 December 2016.
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regulation, access in some parts of the financial services sector is limited. The EEA Agreement does not cover the work of the European Supervisory Authorities (ESAs), which may leave the UK financial services sector isolated. If the UK does not have a seat at the table in crafting financial regulation, it is likely that the rules themselves will favour other financial services markets. Even in areas where the UK does have some access for financial services, it may find itself at a disadvantage in a market where the rules have been designed to favour the EU own financial centres. The UK would have to accept the free movement of people between the EFTA members and EU members, thanks to the EEA Treaty, but it could keep border controls, being outside Schengen area. EFTA - Article 56 Accession and association - EFTA Treaty 1. Any State may accede to this Convention, provided that the Council decides to approve its accession, on such terms and conditions as may be set out in that decision. The instrument of accession shall be deposited with the Depositary, which shall notify all other Member States. This Convention shall enter into force in relation to an acceding State on the date indicated in that decision. 2. The Council may negotiate an agreement between the Member States and any other State, union of States or international organisation, creating an association embodying such reciprocal rights and obligations, common actions and special procedures as may be appropriate. Such an agreement shall be submitted to the Member States for acceptance and shall enter into force provided that it is accepted by all Member States. Instruments of acceptance shall be deposited with the Depositary, which shall notify all other Member States. 3. Any State acceding to this Convention shall apply to become a party to the free trade agreements between the Member States on the one hand and third states, unions of states or international organisations on the other.
Finally, becoming part of the EEA will not be automatic, and the UK will have to bargain. The first step would be joining the EFTA, indeed, only member of the EU or the EFTA can be part of the EEA (Part XI article 126 483 and 128 EEA). Doing so, the UK has to accept the four freedom within its member and face the approval of the EFTA members (article 56 EFTA). After negotiating with the current contacting parties, including the EU, they will also have to ratify or approve the application, depending on its internal law (Part XI article 129 - EEA). Timely, the access to the Single Market for UK businesses depends on how quickly other EEA States process EU legislation: there is currently a delay of 6-24 months. If standards are not the same. Due to the failure of other EEA States to incorporate
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Article 126 of the Agreement on the EEA makes it clear that the EEA Agreement only applies to the territories of the EU, in addition to Iceland, Liechtenstein and Norway. Under the present wording of the EEA Agreement, it is therefore impossible to be a party to the EEA Agreement without being a member of either the EU or EFTA.
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EU legislations, access to the Single Market may become limited, for example, for products that do not meet higher EU standards. This can be overcomed by the Great Reparation Bill proposed by Theresa May, which would include all the EU regulations and standards. However, according to the previous three EEA round of enlargement, concerning new EU Members, the negotiations took at least 6 months484 to be concluded. A recent report on the EEA, commissioned by the Norwegian government, concluded that EEA is suitable "for small states with limited ambitions to influence policy"485.
Overview of the EFTA-EEA model Control of Immigration
The UK will lose control over the immigration, as EFTA pormote free movement of people within its members and EEA with the EU
Single Market Access
The UK will have access to the Single Market (as a normal member), and it will profit of the EFTA FTAs
Trade policies
The UK will lose control on its trade, but inside the EFTA will have more decisional power on the future FTAs
Contribution to EU budget
The UK will contribute to the EU budget, but will chose which EU project apply
Degree of Soveregnity
The UK will lose the legislative indipendence, being obliged by EEA to transpose EU legislation, thanks to the Great Reapair Bill all the EU legisation will still apply; it will lose also its decision making-power inside the EU, however it will be the most influent member of EFTA
Prevent UK members leave
Northern Ireland will less probably start the process to leave the UK, as well as Scotland
Fight euroshepticism in EU
The outcome will probably will hits the eurosceptic in the EU
Prevent division within EU countries
This agreement will satisfy all the EU countries
Amoun of negotiations
The UK will have to negotiate the deal with the EFTA and EEA and the WTO membership and tarrifs
Time to set the new status
Up to 6 months to negotiate the access of the EFTA-EEA area, years to negotiate the WTO tarifs, regular negotiation can start with the trigger of article 50 TEU
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With ten new members acceding to the EU on 1 May 2004, there was a need to negotiate and adapt the EEA Agreement to take account of the new situation. This was the first time in the ten-year history of the EEA that new members needed to accede to the Agreement following negotiations on the terms of participation. The resulting EEA Enlargement Agreement was provisionally applicable as of 1 May 2004, concurrently with the EU Enlargement, and entered into force on 6 December 2005 after the completion of ratification by all Parties. On 1 January 2007, Bulgaria and Romania joined the EU and the corresponding EEA Enlargement Agreement extending the EEA to those countries was provisionally applicable as of 1 August 2007 and entered into force on 9 November 2011. The latest enlargement of the EU took place on 1 July 2013 when the Republic of Croatia joined the Union, and upon the entry into force of the corresponding EEA Enlargement Agreement, the EEA will comprise 31 countries with more than 500 million citizens. The EEA Enlargement Agreement is provisionally applicable as of 12 April 2014 and is currently pending ratification by the Parties. EEA Enlargement, EEA website 485 No power, no influence and we would still have to pay the bill Guardian 16 December 2016
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The swiss Model The UK has also the possibility to apply for a Swiss model. The alpine confederation is part of the EFTA so it benefits of the interal movement of goods, capitals, services and persons and moreover of the trade agreements with Third Countries. The difference is that the relations with the EU, which instead being settle by EEA, are the result of bilateral agreements, more than 120, creating a unique relationship with the EU. The supporters of this framework pushed on the soveregeinty of the UK. The arrangements between Switzerland and the EU are based on classic international law. This means that, unlike EEA members, Swiss had negotiated its own agreements, with the EU so not being automatically subject to EU legislation. Moreover, Swiss is not bound by judgments of the ECJ or EFTA Court. However, that legal analysis does not fully reflect reality: in order to be able to export to the EU, Swiss finds itself in the same de facto situation as the EEA EFTA States. It had to incorporate EU regulations and directives into its legal order and follow their interpretation by the ECJ, although it does not participate in the decisions that lead to their adoption. However, the UK would likely make a significantly smaller financial contribution. Swiss does not contribute to the EU or EEA budgets, but does take part in other EU financial initiatives, such as research programmes. If the UK paid the same per capita rate as Switzerland, its net contribution would fall by 59%486. Supporter of Swiss model baked the possibility to regain the control over the immigration. In February 2014, Swiss people decided in a referendum to oppose unlimited immigration from the EU487. Thus the Swiss Government announced that it would not allow free movement of persons with Croatia, which joined the EU in 2013 and after a program of contigentement over the immigration with EU countries, expecially directed to the neighborhooding countries (like Italian transfrontalier workers). However, the EU rejected those proposals arguing this would breach Treaties between Swiss and the EU. The EU has already ‘punished’ 486 487
House of Commons Library (2013), “The Economic Impact of EU membership on the UK”, page 26. Switzerland gets first penalty for immigration vote Euractiv, 17 February 2016.
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Switzerland by excluding its people and universities from the Erasmus educational exchanges and from some of its research programmes. It is unclear how and when this stand-off will be resolved, but the EU has said that, unless Switzerland rethinks the migration issue, it will start to lose access to the single market.
Critics to the Swiss Model The first problem would be to negotiate all the 120 agreement separately, this would take more time than negotiate a single package as EEA, and indeed a timetable of this model is actually unknown. The UK should also negotiate trade agreements with third countries (see to the WTO paragraph). Moreover, the UK would face the same problem of losing influence over EU, having to comply with EU regulation in return for Single Market access, without being represented in decision-making. This problem would be worse under the “Swiss option”, as there are fewer institutional structures in place to express a “soft influence” in the EU decision-making process. Furthermore, there is also no mechanism for automatically updating the Swiss bilateral agreements as EU regulation develops. As a consequence, Switzerland must continually amend and adopt legislations similar to the EU ones, in orther to allow its businesses to continue having access to the Single Market. Moreover, Swiss currently has no agreement on services with the EU, and in particular on financial services (apart from one accord on life assurance). Like Britain, Switzerland has a financial sector which makes up close to 10% of its GDP. In the worst year of the economic downturn, 2008, the Swiss continued to grow at a staggering 3.1%, avoiding to put in place an agreement with the EU. Supporter of the Swiss model suggest this will also happen to the UK. But Swiss has built its banking business on the basis of being a tax haven488, a place where to store money, on the contrary London is capital market, with different needs. Second, Swiss’ other finance activities have also been based on very low corporate taxes. In contrast, the
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Banking secrecy since 1934, It is impossible to know for sure how much money is illicitly located in Switzerland, but a past chairman of the Swiss Private Bankers' Association has admitted it may be as high as 30% Switzerland: a trillion dollars in black money? TAX JUSTICE NETWORK 1 September 2009.
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UK needs high corporate tax revenues from businesses capable of generating large numbers of jobs. A substantial part of British trade is in services, because of the City of London’s role as an international financial centre. Moreover, the US has recently broken Swiss secrecy, and the EU and its member states are lining up to do the same, threaten to stop the access to the Single Market. The needs of the UK and Swiss are also very different regarding the rest of the economy. Swiss hass a small trade volume with very high added value. In contrast, the UK has been and remains a bulk-trading nation, adding relatively little added value to goods in transit. The major problem is the EU intention to change this model in favour of a more comprehensive agreement. In December 2010, the EU’s Council of Ministers described these relations as “not ensuring the necessary homogeneity”, and causing “legal uncertainty”. It added that this system “has become complex and unwieldy to manage and has clearly reached its limits”. In December 2012, the Council reaffirmed that “further steps are necessary in order to ensure the homogeneous interpretation and application of the Internal Market rules”, and that it would seek a “legally binding mechanism” to make Switzerland sign up to revised laws, as well as “international mechanisms for surveillance and judicial control”. The dispute over free movement of persons confirmed the EU in its view that the current legal framework was failing. Driven by the desire to try and solve all problems in a single comprehensive package deal, the Council of Ministers decided, in May 2014, to mandate the Commission to launch negotiations with Swiss on “an international agreement on an institutional framework governing bilateral relations with the Swiss Confederation”. These negotiations are currently ongoing. The Council mandate proposes that the European Commission should monitor Swiss’application of the bilateral agreements, having an investigatory and decision-making powers, with jurisdiction ofthe ECJ. The European Council also proposed a procedure to allow the EU to terminate agreements if Switzerland violates them. The mandate also proposes a maximum time limit for Switzerland to implement EU laws, when they
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are updated by the EU. However, the negotiations are far from complete and probably Swiss might need to organise a referendum for the ratification of a new agreement. This situation is discouraging for the UK to try to adopt a similar model. Moreover, recently both Mr. Schulz President of the EU Parliament489 and Mr. Juncker, President of the Commission490 have clearly stated that they are not going to accept a UK “a la carte” access to the Single Market for the UK, meaning the necessity to settle a comprehensive agreement, aligned with EU acquis.
Overview of the EFTA-Swiss model Control of Immigration
The UK will retain a certain control over the immigration, EFTA pormote free movement of people within its member, but the UK should make an agreement with EU to enter the Single Market
Single Market Access
The UK will have no direct access to the Single Market (negotiation are required), but it will profit of the EFTA FTAs
Trade policies
The UK will lose some control on its trade, but inside the EFTA will have more decisional power on the future FTAs
Contribution to EU budget
The UK will contribute to the EU budget, but will chose which EU project apply
Degree of Soveregnity
The UK will reatin the legislative indipendence, but e high level of harmonisation with the EU legislation will be necessary to enter the Single Market, thanks to the Great Reapair Bill all the EU legisation will still apply; however, it will be the most influent member of EFTA
Prevent UK members leave
Northern Ireland will less stop the process to leave the UK, as well as Scotland
Fight euroshepticism in EU
The outcome will probably will slightly hits the eurosceptic in the EU
Prevent division within EU countries
This model has uncertain outcome, so it can sattisfied all the EU countries or create disputies, furthermore it will create contrast with the institutions which are rejecting this kind of atipical association (even to Swiss)
Amoun of negotiations
The UK will have to negotiate the deal with the EFTA and sectorial agreement with EU and the WTO membership and tarrifs
Time to set the new status
Up to 6 months to negotiate the access of the EFTA area, years to negotiate the EU agreements and WTO tarifs, regular negotiation can start with the trigger of article 50 TEU
489
Mr Schulz speech to the London School of Economics European Parliament head Martin Schulz warns UK 'no a la carte' Brexit menu Euronews 23 september 2016. 490 Mr Junker speech at the State of the Union State of the Union Address 2016: Towards a better Europe - a Europe that protects, empowers and defends.
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”I want to see a ring of friends surrounding the Union and its closest european neighbours ” Romano Prodi, 6 December 2002
4. A continental partnership After having explored the three main possibility for a Brexit, a new proposal is also interesteng to be taken into account. The Contintal Partnership found its origin form the idea lunched in the ealy 2000 by Romano Prodi. When he was president of the European Commission, he suggested to surround the European Union by a ring of friend Countries, sharing everything with the Union but not the institution491. Stating from this suggestion, a policy group formed by Jean PisaniFerry, Norbert Röttgen, André Sapir, Paul Tucker, Guntram B. Wolff492 published a paper493 proposing a Continental Partnership494 (CP). They proposed the creation of a new form of collaboration, which is ‘considerably less deep than EU membership but rather closer than a simple free-trade agreement’.
The aim of the CP Starting from the reflection that neither the EU nor the UK have an interest in a divorce that diminishes their influence and causes economic problems, the authors propose a new form of collaboration. In which, the UK will have some control over labour mobility, as well as avoiding to be part of the EU’s supranational decisionmaking process. The proposed continental partnership would consist in participating in goods, services, capital mobility and some temporary labour mobility as well. The new system will be based on an inter-governmental decisionmaking process and enforcement of common rules to protect the homogeneity of 491
A Wider Europe - A Proximity Policy as the key to stability, European Commission, 6 December 2002. Jean Pisani-Ferry is Professor at Hertie School of Governance; Norbert Röttgen is Chairman of the Foreign Affairs Committee of the German Bundestag; André Sapir is Professor at the Université libre de Bruxelles and Senior Fellow at Bruegel; Paul Tucker is Chair of the Systemic Risk Council and a Fellow at the Harvard Kennedy School of Government; Guntram Wolff is Director of Bruegel. 493 Europe after Brexit: A proposal for a continental partnership, 25 August 2016. 494 The praper was published on the Bruegel website on the 29 August and presented at the Bruegel annual meeting on 67/09/2016 in Brussels. 492
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the deeply integrated market. The UK would have a say in EU policies but ultimate formal authority would remain with the EU. The partnership is not only a solution ad hoc for the UK, but open to other neighbourhood countries. This results in a Europe with an inner circle, the EU, with deep and political integration, and an outer circle with less integration, structuring relations with other countries495.
Reflection over the four freedoms The authors believe in the so-called ‘four freedoms’: goods, services, capital and people, which are the basis of the European Single Market are alienable. In particular, the free movement of workers can be separated from the other three, even if some temporary labour mobility is needed. Taken a pure economic viewpoint, goods, services and capital can be freely exchanged in a deeply integrated market without free movement of workers, though not entirely without some labour mobility. Free movement of workers is, in the mind of the CP authors, not indispensable for the smooth functioning of economic integration in goods, services and capital. On the other hand, some degree of labour mobility is an essential counterpart of the free flow of goods, services and capital. Firms that operate in foreign countries need to be able to transfer workers abroad, at least for temporary periods. Indeed, the proposal includes no legal right to free movement for workers but a regime of some controlled labour mobility, as well as a contribution to the EU budget, to create a framework for continued close cooperation, even integration, on matters of common interest.
The structure The proposal frames a regime of less-political economic cooperation496. The CP should involve: (i) Participation in a series of selected common policies consistent with access to the Single Market; (ii) Participation in a new CP system of inter-governmental decision making and enforcement; (iii) Contribution to the EU budget; (iv) Close cooperation on foreign policy, security and, possibly, defence 495 496
Europe after Brexit: A proposal for a continental partnership, 25 August 2016, pg 1-2. Europe after Brexit: A proposal for a continental partnership, 25 August 2016, pg 6.
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matters. The obvious challenge for EU-CP cooperation will be to preserve the processes and structures of the EU as a supranational entity and at the same time to ensure that CP members that are not part of the EU have a say in common matters.
Membership, Members of the CP would be the EU, all EU-countries, and the UK together with any other countries that participated.
Intergovernmental decision-making, on matters for which the EU already has an intergovernmental decision-making process, the issue of cooperation under the CP will be intergovernmental as well. Foreign, security and defence policy would be included.
Supranational decision-making, on areas in which the EU acts as a supranational body with (partial) sovereignty, including in particular all single market matters. Cooperation in this area means that although a CP member is not a member of the EU, it would get full access to the respective parts of the single market with all rights, opportunities and obligations other than freedom of movement for workers.
The CP Council CP countries would meet in a CP council, in which EU institutions would participate. At the level of the CP council, the UK would thus continue to participate in the numerous different formations, where the details of single market regulation and other policies in which it would continue participating, are discussed and negotiated. Obviously, the CP council could not pass EU legislation but CP partners would be involved in CP council readings of draft EU legislation and they would have a right to propose amendments. The EU law, however, would continue being adopted through the normal EU legislative process. In practice, in the areas that concern the CP, the CP council would deliberate the legislative proposals before they are formally passed in the council of the European Union and the European Parliament, so that positions expressed by non-EU members could be taken into account throughout the legislative process and in the final decision.
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Formally, it would be a political, not legal, commitment by EU member states to take into account the positions and deliberations in the CP council. The CP council would therefore deal with this major political task. If the EU and its partners disagree within the CP council, the final say would formally remain with the EU. The non-EU CP members would then still have to implement the single market legislation in their national legislation or face restrictions on participation in the single market. The CP partners would not have veto rights over the EU decisions but they would be closely involved in law-making at the intergovernmental level of the CP council. Conversely, CP members would have to accept the enforcement measures and jurisprudence that safeguards the relevant freedoms of the single market.
Juridical cooperation The CP will structure a similar system like EEA, where a special court is responsible to rule on litigations which involve an EEA country. However, rules ensure that the court follows the relevant law-case of the ECJ. In case of a unique member like the UK, the partnership could foresee the extention of the ECJ power. However, the authors of the CP prefer a court composition involving judges from all CP countries, bound by ECJ497. The competition policy enforcement and state aid control will be addressed again like in the EEA, where the European Commission is largely in charge of it498.
Participation in the EU budget One of the issues of Brexit was the participation to the EU budget. Leave Campaigners sustain that leaving EU will free resoures to be spent in other internal issues. However, the authors of the CP believe that the participation to EU budget still constitutes an essential element of the integrated economic space. It is indispensable in the area of agricultural policy but, with its aim of structural
497
Europe after Brexit: A proposal for a continental partnership, 25 August 2016, pg 7. However, autors open to further debade on the issue, Europe after Brexit: A proposal for a continental partnership, 25 August 2016, pg 7. 498
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convergence, is also important for opening up economic opportunities for lessdeveloped areas in and out the EU. Participation in the EU budget is a necessary counterpart to participation in the Single Market and as concession for limiting the free movement of workers.
CP policy areas
Accepting the acquis in all single market areas, except those relating to the free movement of workers. In the suggested scheme, the UK would impose a quota-system of some kind on the EU as a whole, while the EU would impose a quota on the UK499.
CP members would deal with shared external economic policies, in particular in trade and financial regulatory matters. Its creation would ensure that Brexit does not result in a long-term weakening of Europe’s voice in global negotiations. Trade policy is an exclusive competence of the EU, so CP countries will partecipate in EU trade policy through the CP council, thereby choosing to give up their ability to negotiate individually new free trade agreements.
Financial regulatory convergence is another point of discussion. EU is going in the direction to a full integration of its financial and capital market500. It would make sense to coordinate the positions of the Bank of England, other CP central banks and the ECB.
Energy and climate policies are also areas wich can fall under the CP. This could involve participation in the EU emissions trading system (ETS), coordination of CP positions in international climate negotiations and participation in an energy union if it progressed.
Active role in foreign, security and defence matters. Civil war in Ukraine, Syria and Libia are questions to be addressed with an even more close cooperation. Justice and security affairs are a shared EU competence, which
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The authors assume that the EU will define a joint migration policy. We would reject a quota system by which the UK would impose quotas on individual EU countries. 500 ESBC is already in place and a further integration of the Capital Market has been lunched by Juncker during his last ‘state of the union’ speech.
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means that it is not a purely intergovernmental set-up and EU institutions have a formal role. Moreover, the proposal to create a European Army501, if pursued, will increase the European integration. This raises difficult legal questions of how the CP-EU collaboration in the matter should be structured, which the authors did not solve.
The geografical scope The Continental Partnership could be opened to other European countries that might want to join. In particular, members of the EEA Iceland, Liechtenstein and Norway. These three countries fully participate in the Single Market but do not have any significant say in the law-making process (as seen before). Therefore, the participation of the EEA countries would give them the right to negotiate the EU policies. The CP woud also be an attractive model for Switzerland, as the country is implementing a system to contingent the immigration from other EU countries502. However, as a counterpart to joining CP, it would have to adopt the full set of Single Market legisaltions. Similar discussion for others small EU partners like Albania, Serbia, Montenegro and FYROM. This kind of partnership will also address the issue of Turkey’s membership. One of the reasons why some EU Member States are not accepting Turkey joining the EU is the free movement of people, which undoubtly will cause a massive immigration of Muslims. Offering Turkey, the prospect of a structured partnership with the EU in which it would have a voice could contribute to deterring a drift away from democracy and associated values. In the longer term, the CP might also provide a framework for a strengthened relationship with EU neighbours in the east, (Ukraine) and south (Morocco, Tunisia and once stabilized other North-African countries). Again, the intergovernmental character of the partnership and the exclusion of free movement of workers could contribute towards addressing existing stumbling blocks.
501 502
been lunched by Juncker during his last ‘state of the union’ speech. A 5-step guide to Switzerland’s immigration changes, Le News, 17 March 2015.
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Critics to the CP model The CP proposal raises legal and political concerns. The limitation to the free movement of people is positive for the UK, but simply unacceptable for the EU. Institutions have already clarified that in case of association the 4 fundamental freedoms have to be respected. It is not clear how the CP Council will influence the EU legislations, as the proposal is made to give a more decision-making power to the associated countries, but at the same time explicitly states that the last word on the legislations is retained by the European Union. Giorgion Maganza, former director for Institutional Affairs at the Council of the EU, argued503 that it will make impossible to make a deep involvement of CP Council in the EU legislative process because: (i) the legislative process will be too long and complex having the proposal be discussed in parallel by EU and CP Councils (unclear at which stage). (ii) If the CP Coucil will have a real decision making power (at least more that the EEA Council) the EU legislative making process will not be configured anymore as internal, having to deal with an external parter the EU legislative process will become intergovernmental. The EU Members will have overthrown their internal decision by a new agreement with the CP. So far, this possibility under the EU Treaties will required a different legislative process, so the treaties need to be modified. (iii) If in the end the EU will approve a legislation, which the CPs do not like, they will have the problem to justify it with their internal electorate. A second issue will be the possibility for the EU to lose other Members. Thanks to the power to influence the EU decision making process other countries will fast apply to enter in the CP. Leaving aside the EFTA members, which definitively will apply to the CP to have more say on the EU law. Other EU Countries, like Denmark, Hungary, but also Holland or Czech Republic, will think to do the same. “The possibility to influence the decision making process, linked
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Discussion over the constitutional relationship of the United Kingdom with the European Union: the consequences of the results of the referendum of 23 June 2016, speaker ·Presentation by experts: Guntram Wolff (Director of Bruegel) drafter of the CP proposal; Giorgio Maganza (former Director for Institutional Affairs at the Council of the EU); Yves Bertoncini (Director of Notre Europe), AFCO European Parliament Committee, 29 September 2016.
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with a degree of indipence in the immigration and trade policies will seriously put in danger the existence of the European Union” concluded Mr. Maganza.
Overview of the CP model Control of Immigration
The CP is aimed to split the four pillar, so the UK will retain control over the immigration, accepting only temprary work immigration
Single Market Access
The CP will have give direct access to the Single Market on goods, services and capitals
Trade policies
The UK will lose all the indipendence in trade, leaving it to the EU
Contribution to EU budget
The UK will contribute to the EU budget
Degree of Sovereignty
The UK will lose the legislative indipendence, having to adopt the EU legislations; however, it will be the most influent member in case of the CP will be extended to other countries
Prevent UK members leave
Northern Ireland will stop the process to leave the UK, as well as Scotland
Fight euroscepticism in EU
The outcome will make grow the eurosceptics in the EU, giving them the possibility to ask for referendums to change bloc
Prevent division within EU countries
This model will create a deeper fracture within the EU members and institutions
Amoun of negotiations
The UK will have to negotiate the CP with the EU, as it is a new model so the outcome is not predictable, and the UK will also have to negotiate the WTO membership and tarrifs
Time to set the new status
Up to 2 years to negotiate the CP agreement, years to negotiate WTO tarifs, regular negotiation can start with the trigger of article 50 TEU
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” The way ahead is not easy nor safe. But it has to be walked, and it will be!” Altiero Spinelli, July 1941
5. A Soft Brexit After having explored the main possible scenarios of Brexit, this last paragraph compares all of them on the basis of the different issues to address: (i) control of immigration, (ii) access to Single Market, (ii) ability of negotiate Free Trade Agreements, (iv) contribution to EU budget, (v) degree of self-rule, (vi) prevention of UK Members to leave, (vii) fight euroscepticism in EU, (viii) prevent division within EU countries, (ix) negotiations ahead, (x) timetable to set the new status. This criteria will be also compared with the position of the EU (Institutions) and the UK (Government). Taking into account that the future realtionship cannot be an “a la carte membership“, both for the legal and polical reasons. Moreover, this new agreement cannot be more favorable than the one negotiated in February, which gave some control over the migation and commitment to reduce the legislative presence of the UK, which also would have gain more decisional power over the monetary policy. The final aim of this analysis is to find the most suitable model for the futer EU-UK relationships after the end of the negotiation.
Immigration policies The immigration is the factor which divided more the opinions. As the May Governement committed clearly to avoite any kind of free movement of people in the future agreement with the EU, while the European bloc rejects (not jointly) this possibility, considering this as a precondition to have access to the Single Market. All the models indeed presented a black or white where or you fully agree to the free movement or not. Indeed, models like WTO, FTA, Custum Union and CP gives the UK a full control over the immigration policies, authorizing only temporary
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movement of workers (in connection with the business). The EFTA-EEA settled a full right of free movement of people. Only the EFTA-Swiss model gives the possibility to the UK to retain some control on the immigration, but the EU is already contesting this approach to the Swiss. Thus, the EU probably will not be open to discuss it with the UK, to prevent also other countries to have the same claims. This will probably lead to a hard face to face during the negotiations, moving the discussion over the access to the Single Market. Compared immigration policies Full control on the Immigration UK postion
Full control on the Immigration
WTO model
The UK will have full control over the immigration, as no deal with the EU subsists
FTA model
The UK will have full control over the immigration, only temporary movement will be allowed
Custom Union model
The UK will have full control over the immigration, only temporary movement will be allowed
CP model
The CP is aimed to split the four pillar, so the UK will retain control over the immigration, accepting only temprary work immigration
EFTA-Swiss model
The UK will retain a certain control over the immigration, EFTA pormote free movement of people within its member, but the UK should make an agreement with EU to enter the Single Market
EFTA-EEA model
The UK will lose control over the immigration, as EFTA pormote free movement of people within its members and EEA with the EU
EU Position
Free movement of worker between EU and UK
Free movement of worker between EU and UK
Access to the European Single Market If over the immigration the position were totaly opposite, on the Single Market they are convergent: both the EU and the UK want to continue to share a Single Market. Indeed, the European economical intergation is so deep that both of the sides are interested to mantain as it is now, so a full Custums Union on goods, services and capitals. Thus, the issue is not on the mutual access on its own domestic markets, instead it will be usedby the EU as weapon to spend adressing other issues, especially immigration and trade. The comparison between models, shows that only the WTO excludes a direct access to the Single Market, while the all others do (with different degree of integration). However only the CP models and the ones under 222
the EFTA fully address the capital and servicies circulation, which represent the main source of Trade for the UK. Single Market Access No access to the Single Market WTO model
The UK will have no access to the Single Market as no deal with the EU subsist, so it will trade under WTO tarifs
Custom Union model
The UK will have accessto the Single Market (without special provision for services and capitals), with the rest of the world it will trade under WTO tarifs
FTA model
The UK will have access to the Single Market (with special provision covering service and capitals), but with the rest of the world it will trade under WTO tarifs
CP model
The CP will have give direct access to the Single Market on goods, services and capitals
EFTA-Swiss model
The UK will have no direct access to the Single Market (negotiation are required), but it will profit of the EFTA FTAs
EFTA-EEA model
The UK will have access to the Single Market (as a normal member), and it will profit of the EFTA FTAs
CP model
The CP will have give direct access to the Single Market on goods, services and capitals
UK postion
Full access to the Single Market for goods, servicies and capitals
EU Position
Full access to the Single Market for goods, servicies and capitals
Full access to the Single Market
Ability of negotiate Free Trade The Trade policy was taken by the new British Government as the main topic supporting the Brexit, while during the referendum campaing was berely marginal in the discussion (even if expert had recognized its importance). The call to create a new “Global Britain“made by Theresa May carried the issue as one of the main in the discussion. The UK is claimig the possibility to negoitate its own FTAs, after going out the European Union. The EU is not so far the British position, the EU already allows its close partner as EFTA Members and Turkey to have their own Trade policy, the only thing the EU ask is the respect to the EU legislation to access the Single Market. Looking the models, only the CP will not allow UK to have its own trade policies. The choice is a counterpart to retain an immigration policy and also the author of the proposal believe that negotiating as bloc will ensure a stronger negotiation power. Being inside the EFTA will guarantee to the UK the partecipation to a broad range of FTAs, without having to negotiate it from the 223
beginning, also with the possibility to choose the ones they prefer. Considering that the other models do not offer any provision on it, this model offers a secure solution for the UK internationl status after the exit. However, experts agrue that this will go aganist the new policy of a global Britain, but it will also be true that, inside the EFTA, the UK will be the most influential player. Trade policies Full ability for the UK tonegotiate FTAs and establish trade policies UK postion
Full ability for the UK tonegotiate FTAs and establish trade policies
WTO model
The UK will have full control on its trade, but it will inherit no FTA deal from the EU
FTA model
The UK will have full control on its trade, but will have to negotiate its FTA as well as the WTO membership and tarrifs
Custom Union model
The UK will have full control on its trade, but will need to negotiate its FTAs as well as the WTO membership and tarifs. However, the UK will suffer indireclty the EU FTAs, risking to lost its negotiational power
EU Position
The EU can allow the UK to negotiate its own FTAs, but pretend the EU legislation is adressed to access the Single Market
EFTA-EEA model
The UK will lose control on its trade, but inside the EFTA will have more decisional power on the future FTAs
EFTA-Swiss model
The UK will lose some control on its trade, but inside the EFTA will have more decisional power on the future FTAs
CP model
The UK will lose all the indipendence in trade, leaving it to the EU
Negotiation of FTAs and trade policies delegated to EU
Ability Contribution to EU budget Again the position of the UK and EU are really similar. The European Institutions demonstrated, during the previous negotiation in February 2016, to be open to a consistent cut of the UK contribution to the EU budget. Indeed, the EU gives the possibility to its close partners to choose the project they want to apply for, like the case of EFTA, Turkey and UK itself. The negotiation over the budget contribution will be more linked with the parteciation to the Single Market. Analysing the models, only CP stated a contribution to the EU budget in exchange for the access to the Single Market, while EFTA models are more focused on the specific programs or projects. The other models do not foresee any contribution.
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Contribution to EU budget No contribution to EU budget UK postion
No contribution to EU budget
WTO model
The UK will not contribute to the EU budget, but will lost the access to all the EU projects
FTA model
The UK will not contribute to the EU budget, but will lost the access to all the EU projects
Custom Union model
The UK will not contribute to the EU budget, but will lost the access to all the EU projects
EU Position
Availability to negotiate a low contribution to the EU budget
EFTA-Swiss model
The UK will contribute to the EU budget, but will chose which EU project apply
EFTA-EEA model
The UK will contribute to the EU budget, but will chose which EU project apply
CP model
The UK will contribute to the EU budget
Contribution to the EU budget
Degree of Sovereignty The UK wants to have the full legislative independence and for the EU it is not a big issue, except that to be part of the Single Market, the UK should apply to the EU law. As the EFTA and Turkey models suggest, the EU does not care so much about which is the legislative process (national or European). The UK can simply copy and paste an EU legislation to apply on it. Even if the UK demands the possibility to make their own legislations, the reality will be the UK Government will transpose all the EU laws in domestic legislations, without modify it (at the beginning) for time question. Moreover, the current tendency in the international relationship is the legislative cooperation, as shown by the CETA agreement. Claiming the home-rule as Britain is doing will not change the fact that as minor player the UK will have to follow the major one, like EU or US. Legislative convergence is far more important in the servicies sector especially in the digital one, where UK‘s businesses are global leaders. Furthermore, the EU is starting a new trend of legislation, with extended territorial scope. Example of it is the General Data Protection Regulation, so called GDPR504. The new regulation applies if the data controller or processor (organization) or the data subject (person) is based in the EU. But (unlike the previous directive) the GDPR also applies to 504
REGULATION (EU) 2016/679 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL, European Commission, 27 April 2016
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organizations based outside the European Union if they process personal data of EU residents. For instance, even in the eventuality of a Hard Brexit, the GDPR will still apply to UK copanies that are doing business in Europe. Generally, all the models allow England to have its, supposed, full sovereignty, while only EFTAEEA and CP will oblige the UK to introduce the EU legislative provisions. Degree of Soveregnity Full Soveregnity UK postion
Full Soveregnity
WTO model
The UK will have the full legislative indipendence, but thanks to the Great Reapair Bill all the EU legisation wil still apply
FTA model
The UK will have the full legislative indipendence but a degree of harmonization will be required to trade with the EU, thanks to the Great Reapair Bill all the EU legisation wil still apply
Custom Union model
The UK will have the full legislative indipendence but a high degree of harmonization will be required to trade with the EU, thanks to the Great Reapair Bill all the EU legisation wil still apply
EFTA-Swiss model
The UK will reatin the legislative indipendence, but e high level of harmonisation with the EU legislation will be necessary to enter the Single Market, thanks to the Great Reapair Bill all the EU legisation will still apply; however, it will be the most influent member of EFTA
EU Position
Full Soveregnity, but harmonisation with the EU laws
EFTA-EEA model
The UK will have lost the legislative indipendence, being obliged by EEA to transpose EU legislation, thanks to the Great Reapair Bill all the EU legisation will still apply; it will lose also its decision making-power inside the EU, however it will be the most influent member of EFTA
CP model
The UK will lose the legislative indipendence, having to adopt the EU legislations; however, it will be the most influent member in case of the CP will be extended to other countries
Partial cession of Soveregnity to the EU
Prevent UK Members leave In case Scotland and Northern Ireland will decide to leave the UK, the EU already declared its support to an EU immediate membership of them. In her speech, at the Conservatives Conference on the 2nd October, Theresa May has remarked that the result of the referendum is valid for all the UK Member States. However, Scotalnd intends to start the referendum procedure soon and Ireland probably will follow it. As Scotalnd (but also Catalonga, Basque region) is showing there is a trend of asking independence from its Nation by the cultural minority across Europe. They also look at the EU as a sumpernation organisation which can 226
help the process of indipendence, but also offer an enviroment inside which they could survive. Now it is difficult to say that Scotland will not pursue its intention to leave the UK. However, putting in place a Hard Brexit, will not help. Only keeping close relationship with the EU, like in a CP or EFTA models, can save the UK form it disgregation. Prevent UK members leave The UK remains a united nation UK postion
The UK governments will not allow membership referendum
WTO model
Scotaland and Northern Ireland will probably start the process to leave the UK
FTA model
Northern Ireland will less probably start the process to leave the UK, Scotland instead will probably pursue it
Custom Union model
Northern Ireland will less probably start the process to leave the UK, Scotland instead will probably pursue it
EFTA-Swiss model
Northern Ireland will less probably start the process to leave the UK, as well as Scotland
EFTA-EEA model
Northern Ireland will less stop the process to leave the UK, as well as Scotland
CP model
Northern Ireland will stop the process to leave the UK, as well as Scotland
EU Position
EU will accept Scoltand and Northern Ireland in the EU
Scotalnd and Northern Ireland as indipendent countries in the EU
Fight euroshepticism in EU Addressing the question of the euroscepticism is really hard, as it has become mainstream after the 2013. These movements, raising across all Europe, are asking reforms or refererendum to leave. The disagreements within the EU Institutions and the Member States are not helping. Furthermore, the sociological process of leadership selection is helping this movement gain control of the political discussion, infecting also the big parties. The main example is the UK itself where the instances carried by the UKIP are now the program of the Conservatives party. To fight this tendency, the negotiation can take two ways: (i) pushing the UK to leave the EU without and agreement to show the other countries the danger of leaving Europe. (ii) Negotiate with the EU a close partenership with the models of EFTA or CP, so keeping it as close as possible. It is arguable that the first option can obtain the opposite effect, picturing the EU as rancorous. This will help the
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eurosceptic movement instead fighting them back. Currenly the CP model, creating a new status for the UK, will help eurosheptic movement, while the others will problably hit them.
Fight euroshepticism in EU Help the growth of the euroshepticism UK postion
The UKIP and eurosceptic politicians of UK supports the other european eurosceptic movements, no official position of the government
CP model
The outcome will make grow the eurosceptic in the EU, giving them the possibility to ask for referendums to change bloc
FTA model
The outcome will probably will hits the eurosheptic in the eurozone, but the others european countries will start to think about asking the same
WTO model
The severe outcome will probably will hits the eurosceptic, but there is also the possibility of a fightback, blaming the EU for this outcome
EFTA-Swiss model
The outcome will probably will slightly hits the eurosceptic in the EU
Custom Union model
The outcome will probably will hits the eurosceptic in the EU
EFTA-EEA model
The outcome will probably will hits the eurosceptic in the EU
EU Position
EU want to fight the Euroscepticism
Fight back the Euroscepticism
Prevent division within EU countries Connecting with the previous issue the divisions beween the EU Member States and within and between the European Institutions are the main issues for Europe to address. Preventing other member states to leave the EU has to be a priority for the negotiator, so the need to reach an agreement which will satisfy all the actors. Surprisingly, the model that offers the highest level of intergration is also the most dangerous. The CP will help euroscepticism, giving the possibility to find their instance recognized in a new model of association. This will lead some EU Member States to ask joining the new group. Models like WTO, FTA, and Customs Union will harm the unity of the EU, which will split over the issue of economy and immigration. The EFTA-Swiss model has uncertain outcome, instead the EFTA-EEA will find be the suittable outcome for all the EU Member States.
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Prevent division within EU countries Create EU division UK postion
The UKIP and eurosheptic politicians of UK supports the other european eurosheptic movements, no official position of the government
CP model
This model will create a deeper fracture within the EU members and institutions
WTO model
This agreement will seriusly harmed the unity of the EU, the EU Institutions and the Visegrad will still ask for a deal on immigration, as the Franco German directorium which also want a strong trade deal
FTA model
This agreement will slightly have harmed the unity of the EU, the EU Institutions and the Visegrad will still ask for a deal on immigration
Custom Union model
This agreement will slightly have harmed the unity of the EU, the EU Institutions and the Visegrad will still ask for a deal on immigration, as the Franco German directorium which also want a strong trade deal
EFTA-Swiss model
This model has uncertain outcome, so it can sattisfied all the EU countries or create disputies, furthermore it will create contrast with the institutions which are rejecting this kind of atipical association (even to Swiss)
EFTA-EEA model
This agreement will have satisfied all the EU countries
EU Position
European Institution want to keep the EU unify, while the Council is askig for reforms
Prevent EU division
Time and ammout of negotiations ahead These two issues have to be checked jointly because alone are misleading. Indeed, despite the comeback to the WTO will need only to negotiate the membership and tarifs, according to the expterts, the negotiation will take up to 5 10 years to be complete. While the EFTA-EEA will be the fastest to negotiate, because it already, with also a stable organisation. However, the UK must negotiate anyway the WTO membership, in addittion it has to find the right agreements with the EU and other important countries. Except EFTA, which will give the UK the possibility to trade under its FTAs, the other models will require the UK to trade with Third Countries or under the WTO tarifs or to negotiate new FTAs. Keeping in mind that the negotiation of CETA took up to 7 years a new FTA or new kind of association with the EU cannot meet the deadline of 2 years set by the article 50 TEU. There is the concrete risk that if the UK will pursue the intention to apply only to the WTO (currenly stuck on the Doha round), it will take more than the 2 years to fix the tarifs, causing a complete disaster on the UK economy or making 229
longer the negotiations (but the European Council will have to agree on it). Therefore, the fastest option will be to apply for the EFTA membership. This will give the UK the possibility to trade with the most important world partner and negotiate the WTO tarifs with calm. Amount of negotiations Small amount of negotiations UK postion
Negotiate only the WTO membership and tarifs (for the moment)
WTO model
This schenario is the only one which applies without agreement between the EU and UK, but The UK will have to negotiate the WTO membership and tarrifs
Custom Union model
The UK will have to negotiate the deal with the EU, the WTO membership and tarifs
FTA model
The UK will have to negotiate the deal with the EU, the WTO membership and tarrifs
CP model
The UK will have to negotiate the CP with the EU, as it is a new model the outcome is not predictable, and the UK will also have to negotiate the WTO membership and tarrifs
EFTA-EEA model
The UK will have to negotiate the deal with the EFTA and EEA and the WTO membership and tarrifs
EFTA-Swiss model
The UK will have to negotiate the deal with the EFTA and sectorial agreement with EU and the WTO membership and tarrifs
EU Position
Negotiate an association agreement
Huge amount of negotiations
Time to set the new status Short time of negotiation UK postion
The negotiations will finish in 2 years after the trigger of the Article 50 TEU
EU Position
Try to finish the negotiations as soon as possible (but pessimistic over it)
WTO model
From 1 to 5 years to negotiate WTO membership (according to both visions), membership negotiation can start with the trigger of the Article 50, tarrifs can be negotiated only after leaving the EU
CP model
Up to 2 years to negotiate the CP agreement, years to negotiate WTO tarifs, regular negotiation can start with the trigger of article 50 TEU
FTA model
Up to 2 years to negotiate agreements, regular negotiation can start with the trigger of article 50 TEU
Custom Union model
Up 1 year to negotiate agreements, regular negotiation can start with the trigger of article 50 TEU
EFTA-Swiss model
Up to 6 months to negotiate the access of the EFTA area, years to negotiate the EU agreements and WTO tarifs, regular negotiation can start with the trigger of article 50 TEU
EFTA-EEA model
Up to 6 months to negotiate the access of the EFTA-EEA area, years to negotiate the WTO tarifs, regular negotiation can start with the trigger of article 50 TEU
Long time of negotiation
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A Soft-Brexit Having analyzed all the main scenarios for a future of the UK out of the EU the conclusion seems to be not as simple as the initial hypothesis. The definition of Hard and Soft Brexit are not so easy to make and it can change in relation to the issue taked into account. So it can happen that the EU and the UK have similar positions in the time of negotiation (both want to finish within the 2 years set by the Treaties) but totally opposite view on which will be the easiest way to reach this scope. Similarly, the EU and the UK would like to share a CustumUnion (covering goods servicies and capitals), better if this means the UK is directly member of the Single Market. However, the EU and the UK are completely on the antipodes on immigration policy and harmonised market provisions. Therefore, the models which can perfectly address an issue cannot fit for another one. The model which we are looking for should be to find the way to make a compromise over the issues and opinions of the actors. As first the CP model will not be the right choice to address Brexit. Not only because it is a new model (so there is no background about), but mainly because it will not satisfy neither the necessity of the EU to preserve its territorial integrity nor the claims of the UK to have home rules and freedome in trade. Models based on FTA and Custums Union instead have a too narrow scope, leaving the UK without an international enviroment of FTAs. They also will create problems on the immigration issue, the Visegrad group will never accept an agreement which do not involve a sort of opening in the UK immigration policies. Even if the comeback to the WTO is the route claimed by the UK Government and threatened by the EU Insitutions, this author (and some other experts) judges almost impossible to complete the procedure of the membership in 2 years. Even more complex will be the tarrif negotiations. The WTO Doha roud is stuck form several years over the servicies tarifs, exactly the one that would impact more on the British economy. Understandable the attitude of the UK goverment, which is trying to reassure the population and the markets giving a positive picture of this scenario. These hard claims are also useful for taking a favorable position in
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the negotiation ahead. However, probably Theresa May will change her attitude during the negotiations. For this author the best option for the future of Britain will be the EFTA Membership. This will allow the UK to benefit of the FTAs that the EFTA has negotiated worldwide, avoiding the needs to renegotiate it from the beginning (having also the possibility to choose the more suitable for itself). Even if the EEA partecipation will ensure an easy legilsative transition after the Leave, the impossibility to put some barriers to the immigration and sovereignty will harm the development of the negotiations. The compromise will be the Swiss model, which will take more time to be negotiated but it will give the possibility to the UK to keep its sovereignty (even if obliged to a high level of harmonisation). The UK will be able to negotiate a quota of immigation coming from the EU Countries and choose in which project and actions of the EU take part, so which will be its contribution to the EU budget. The EU should make an affort allowing the UK to have a own model, but the situation required a practical approach. The EU adopting this style will both satisfied the needs to have a UK linked to the EU market and a negotiated regime over the immigration. Thus fighting against the eurosceptic and the division within the Union. The negotiation ahead will be really painful and even in case of a Soft-Brexit the EU Member States are going to face really difficult times. A new process needs to start, but not lead by the Commission. The Barroso and Junker top-to-bottom approach has reached its breaking point, causing probably more problems than solutions. The Member States have to start a deep dialogue on which direction the European Union should take. The Council should lead it, because the level of integration EU has reached is not enough. The Member States should find an agreement on how make the European Union closer to the citizen (going out the principle of austerity and rules on budget) and address the issue of the new millenum (like the Digital Market and the Middle-East crisis). The EU is not yet a nation (and never will be probably) but a project of cohabitation, if WE do not understand this WE will seriosly risk to face the disintegration of the EU.
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Abbreviations AfD
Alternative für Deutschland
ALDE
Alliance of Liberals and Democrats for Europe
AV
Alternative Vote
BBC
British Broadcasting Corporation
BNP
British National Party
CCO
Chief Counting Officer
CETA
Comprehensive Economic and Trade Agreement
CJEU
Court of Justice of the European Union
CP
Continental Partnership
EBA
European Banking Authority
EC
European Community
ECB
European Central Bank
ECJ
European Court of Justice
ECR
European Conservatives and Reformists
EEA
European Economic Area
EEC
European Economic Community
EFDD
Europe of Freedom and Direct Democracy
EFTA
European Free Trade Association
EMU
Economic and Monetary Union
ENF
European National Front
EPP
European People's Party
ETS
Emissions Trading System
EU
European Union
FPÖ
The Freedom Party's
FTAs
Free Trade Agreements
GATS
General Agreement on Trade in Services
GATT
General Agreement on Tariffs and Trade
GDP
Gross Domestic Product
GIs
Geographical Indications
Greens/EFA
Greens–European Free Alliance
GUE/NGL
European United Left/Nordic Green Left
ILO
International Labour Organization
IPR
Intellectual Property Rights
ISDS
Investor-state dispute settlement
JDCs
Joint Declarations on Cooperations
KNAPK
Kalaallit Nunaanni Aalisartut Piniartullu Kattuffiat
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L.N.
Legislation Number
M5S
Five Stars Moviment
MEP
Member of the European Parliament
MFF
Multiannual Financial Framework
MP
Member of Parliament
NATO
North Atlantic Treaty Organization
NEC
National Executive Committee
NHS
National Health Service
NVA
New Flemish Alliance
PDSD
Programming Document for the Sustainable Development of Greenland
PM
Prime Minister
PP
People’s Party
PSOE
Spanish Socialist Workers' Party
REFIT
Regulatory Fitness and Performance Programme
S&D
Progressive Alliance of Socialists and Democrats
SDLP
Social Democratic & Labour Party
SDP
Social Democratic Party
SNP
Scottish National Party
SSP
The Scottish Socialist Party
TEU
Treaty on European Union
TFEU
Treaty on the Functioning of the European Union
TRIPS
Trade-Related Aspects of Intellectual Property Rights
TTIP
Transatlantic Trade and Investment Partnership
TUC
Trade Union Congress
TUSC
Trade Unionist and Socialist Coalition
TUV
Traditional Unionist Voice
UCATT
Union of Construction, Allied Trades and Technicians
UK
United Kingdom
UKIP
United Kingdom Indipendence Party
UMP
Union for a Popular Movement
US
United States
USDAW
Union of Shop, Distributive and Allied Workers
WDR
World Development Report
WE
Women's Equality Party
WTO
World Trade Organization
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Closing remarks I would like to thank as first Professor Antonio Varsori, who patiently waited me during these years, and allowed me to change the subject of the dissertation just two months before the deadline. I also thank Matteo Bellotto and Sofia Elanidou who helped me in the review and listed to my ramblings, as well as Mr. Mininnguaq Kleist and all the Greenland Brussels Representation, who helped me to understead the EU-Greenland relationship. A special thanks goes to my colleagues: Bob Schmitz, Geraldine Proust, Matilde Fiquet and Sebastién Houzé who have allowed me to spend more time on this publication, leaving a bit aside my work duties. A final big thank you to all my friends and family who have given me the moral and financial support during this year.
Even if this dissertation summarizes one of the worst moments in the recent history of Europe and the World, I would like to be positive for the future ahead. Hoping that, from all of this mess a new sun could rise for Europe. Firmly believing that the project of the European Union is not a way of managing business between countries but the biggest peaceful attempt to solve conflicts between populations through dialogue. The EU is supposed not to create a new population by assimilating the national one, but to make all the populations of Europe living together in peace despite their differences. This is not only a matter of Europe, this concerns the future of all the humankind. 240
