05 July 2016

Political Reductionism at its Best: the EU Institutions’ Response to the Brexit Referendum

Colleagues have already commented upon the response of the EU institutions to the outcome of the referendum held on 23 June, stressing the rushed and populist attitude shown by the Commission and the EU Parliament, referring, for instance, to the exclusion of the UK from the “informal” meeting of the European Council held on 29 June and to the way in which Juncker made a joke of Nigel Farage, asking why he was in the European Parliament after the UK vote.

However, there is another episode which is very telling, about the respect shown by the “political class” towards Art. 50 of the TEU and, in general, other relevant norms to be taken into account independently from the activation of the exit procedure, like, for instance Art. 4.2 TEU demanding equal treatment of the Members States and respect of their national identity and constitutional structure.

On 28 June 2016, the European Parliament adopted a short resolution on the consequences of the UK referendum held on 23 June.

There is a passage which is based on an evident mistake therein:

“…Warns that in order to prevent damaging uncertainty for everyone and to protect the Union’s integrity, the notification stipulated in Article 50 TEU must take place as soon as possible; expects the UK Prime Minister to notify the outcome of the referendum to the European Council of 28-29 June 2016; this notification will launch the withdrawal procedure.

As Elliott pointed out this is deeply wrong. The notification will be (if carried out) represented by a further act, whose form is still unclear as the debate among our British colleagues and experts in Constitutional law demonstrates (is it a prerogative of the Prime Minister, will a vote of the Westminster Parliament be necessary? Is it a decision for the Government but under parliamentary scrutiny? Could Scotland pose a veto on that?).

One could correct me by saying that de facto the UK has already made its choice, that the EU has the right to protect itself against what is sometimes perceived as a sort of tactical delay. It would not be a mistake then, but simply a linguistic choice of the EP which leaves no margin to the UK. A confirmation of this could be found in the EP resolution itself reporting that EP “will enact changes in its internal organisation to reflect the will of a majority of the citizens of the United Kingdom to withdraw from the European Union”. What does this mean? Are these lines referring to the possibility of removing UK Members of the EP from some senior roles (for instance chairmanship of committees)? And above all, is this, technically speaking, legal?

In spite of the fact that from a formal point of view the UK referendum is not binding, in spite of the fact that the UK has not activated the procedure ex Art. 50 TEU and that the supranational institution may not oblige the UK to launch it, almost everybody is sure that the exit will almost certainly happen. Of course, from a political point of view it is quite clear that the chances of the UK remaining in the EU are quite low, especially for the political meaning of the vote expressed on 23 June.

At the same time, in my capacity as a professor of law, I still think that this scenario is quite deplorable and also emblematic of a certain understanding of law. Against this background, law is represented as the mere crystallisation of power relationships, nothing more.

Norms would just be technicalities, annoying obstacles standing between the political actors and their legitimate goals.

This is profoundly wrong and dangerous: norms, especially when they are codified at a constitutional level (and the EU Treaties are the “basic constitutional charter” of the Union, as the Court of Justice has been repeating since Les Verts), are the shape of power; they are there to avoid abuses and discriminations. The EU institutions, especially the Commission and in primis its President, should ensure neutrality and independence. In this sense, I do share what Komárek recently argued, that the populists are also in Brussels and Strasbourg.

There are many serious issues to be clarified after the UK referendum, we are facing a situation which is both legally and politically complex (I use here complex in its etymological meaning: complexus as interlaced) since different planes are intertwined and difficult to separate and the worst service the EU can do is to simplify or even manipulate them. The confirmation of this is given by the fact that questions that may appear at first glance as an element of domestic law (who is in charge of notifying the decision to leave: the Parliament? The Prime Minister? The Government?) actually have repercussions on the activation of the withdrawal procedure, this is connected to the renvoi made by Art. 50 TEU to the “constitutional requirements” of its Member States. EU Treaties are very rich in norms like this, making reference to national principles (see Art. 6 TEU, many provisions contained in the Charter of Fundamental Rights of the EU). More in general, as Peers nicely pointed out, “one does not simply withdraw from the European Union”, there are hard choices to be made first and we have no precedents because this procedure is brand new. This rushed and laid back type of approach taken by the EP and the Commission risks neglecting the complex nature of this crisis.

This is political reductionism at its best, an exercise of irresponsibility.

Instead of trying to construct a better Europe they seem to be more interested in attacking or even humiliating the representatives of a country which is still a Member State, showing no respect for those rules that they are supposed to defend and guarantee.

 


SUGGESTED CITATION  Martinico, Giuseppe: Political Reductionism at its Best: the EU Institutions’ Response to the Brexit Referendum, VerfBlog, 2016/7/05, https://verfassungsblog.de/european-parliament-brexit-referendum-martinico/, DOI: 10.17176/20160705-185232.

13 Comments

  1. Paolo Sandro Tue 5 Jul 2016 at 09:42 - Reply

    Thanks Giuseppe – a particular poignant opinion, and I commend in particular the point about law and power (I’d push it even further, law is not only the shape but constitutes also the inherent limit of political power).

    As a EU national living in the UK, I dread for the forthcoming negotations, if this is the prelude..

  2. Roberto Castaldi Tue 5 Jul 2016 at 10:48 - Reply

    Dear Giuseppe,
    you are right from a legal perspective, but the position is untenable from a political one. Politics and democracy are serious things, and imply responsibility.

    If the UK Parliament was to decide not to withdraw from the EU – which would be a wise choice from the UK point of view – the consequences would be devastating for democracy in Europe. Nationalists with a populist disguise in all countries would be able to campaign effectively against the EU and all political mainstream parties suggesting they ignore democracy and the people’ will. Therefore, change can happen only through their getting into power. The most important consequences of a UK change of mind would be to highly increase the chances of M5S and the National Front to get to power in Italy and France. This may spell the end of both democracy in those countries and of the EU.

    The UK will be able to choose the existing deal between the EU and a third country, such as Norway, Switzerland – and probably Canada in a few months. Nothing more. The EU cannot afford to provide incetives to leave the Union. Nor can the EU abandon its core principles, such as the free circulation of people within the single market.

    I am sorry for the UK. But the British peoples took their decision in a democratic way – although with a disgraceful campaign. THe result may be the end of the UK with the secession of Scotland and possibly Northern Ireland. It was absolutely not the best outcome. But it was their choice and now they have to pay the price of their decision, rather to change their mind and have the other Europeans pay the price.

    @RobertoCastaldi

  3. Giuseppe Martinico Tue 5 Jul 2016 at 11:07 - Reply

    Dear Roberto, thanks, But is that democracy? There is no clear majority (let’s look at what the Canadian experience tells us), there were a lot of people affected by that vote with no right to vote, the campaign was misinformed (see this video posted by Prof. Dougan: https://www.youtube.com/watch?v=0dosmKwrAbI) , is that democracy? I don’t know. Have a lovely day. G.

  4. Javier Porras Tue 5 Jul 2016 at 11:17 - Reply

    Thank you Giuseppe. It’s interesting both in a legal and in a political perspective. Moreover, it isn’t possible to discuss all the implications here. I would like to emphasize only two points:

    1. From a legal point of view, we are still 28 Members and it must have implications in the European institutions until we have a clear resolution about the exit process. It isn’t easy but we haven’t any protocol or legal basis to exclude the British in the Institutions yet (and we should take into account that a “no relinquishment” is still possible).

    2. From a social-political point of view. We (“the people”) are really prepared to decide in a referendum something crucial in our life and with several implications? And I’m not talking only about the British… I’m studying every day the EU and I’m not sure to be qualified to take a decision like that one. So I’m sorry, but although we are in a democracy it doesn’t mean that some decision could be made in some

  5. Javier Porras Tue 5 Jul 2016 at 11:18 - Reply

    days without a proper campaign and education between the involved people.

  6. Paolo Sandro Tue 5 Jul 2016 at 11:56 - Reply

    @RobertoCastaldi

    I’d allow myself to point to my comment on this blog that touches upon the questionable ‘democratic’ nature of the brexit campaign and referendum – https://verfassungsblog.de/sovereign-and-misinformed-brexit-as-an-exercise-in-democracy/

    I’d also say that your argument about potential ripercussions is speculative at best – one could argue that anti-european movements in other european countries would be as legitimated with brexit going through. I really believe Giuseppe’s point stands.

  7. Luisa Marin Tue 5 Jul 2016 at 12:48 - Reply

    Dear Giuseppe,
    thanks for this commentary. You are right in indicating that the these weeks before and after the EURef have been too ’emotional’, on both sides. We should not forget that also UK made its part, with the resignation of the UK Commissioner Hill from his post.
    After all, we should still remember that UK is still a member, that Art. 4(3) TEU applies.
    I still wonder why Her Majesty the Queen went to Scotland to convey her message: Keep calm and stay connected, as this message seems to me more than appropriate also for London. Greetings from the Netherlands! Luisa

  8. Giuseppe Martinico Tue 5 Jul 2016 at 15:55 - Reply

    Dear Luisa, thanks. Sure, I agree with you, but I also think that politicians can still do something to avoid the Brexit since the referendum is not binding. Many make a distinction between ‘legally binding’ and ‘morally-politically’ binding in this context but I am not totally persuaded. On this see this interesting post: https://ukconstitutionallaw.org/2016/07/05/yossi-nehushtan-why-the-eu-referendums-result-is-not-morally-politically-binding/
    The problem is that there is no political leadership! Big hug from Pisa