05 Juli 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 Di 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 Di 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 Di 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 Di 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 Di 5 Jul 2016 at 11:18 - Reply

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

  6. Paolo Sandro Di 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 Di 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 Di 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

  9. GIUSEPPE MARTINICO Di 5 Jul 2016 at 18:20 - Reply

    Thanks, Javier, you’re right, that’s why we need to discuss when dealing with complex issues. Sandro, Very good post. Have you read this one by Nadia Urbinati?
    http://www.eddyburg.it/2016/07/gli-intellettuali-contro-la-democrazia.html

    I strongly disagree, as I think she is overimplifying the issue. Best.G

  10. Luca Volino Mi 6 Jul 2016 at 11:08 - Reply

    Dear Giuseppe,
    after the referendum David Cameron said that the British Government will activate the exit procedure. Thus, there seems to be no uncertainty about whether the Brits will leave the Union, although it is not clear when they will notify the decision to withdraw.

    I don’t think that the European Institutions have violated the duty to be neutral and impartial, since they are using their political influence to accelerate a process that the British Government started by itself.

    If we take part in an agreement, I shouldn’t use my power to push you to withdraw. However, if you express a clear intention to pull out of our arrangement (and Cameron’s statement was quite clear, even if Brexit did not reach a clear majority), I am entitled to demand that you carry out your decision with due diligence.

    Don’t you think that the European Institutions and the other Member States have the right (technically speaking) to know the time frame of the exit procedure?

    Greetings from Rome,
    Luca

  11. Giuseppe Martinico Mi 6 Jul 2016 at 12:36 - Reply

    Dear Luca, thanks. Actually the situation is a bit more complicated and Cameron was indeed more ambigous (see here: http://www.theguardian.com/politics/2016/jun/26/who-will-dare-pull-trigger-article-50-eu). More in general, acting this way implies giving EU institutions the power to interpret the result of a (non binding) domestic referendum. So, no, I don’t think they have this right. Don’t forget they could use infringement procedure for violation of the principle of loyal cooperation (http://www.federalismi.it/nv14/articolo-documento.cfm?Artid=32127) so, again, they don’t act in a legal vacuum and should rely on what norms say. Thanks again. Best. Giuseppe

  12. Mike Taylor Fr 8 Jul 2016 at 20:37 - Reply

    I write as a British, non lawyer who, not surprisingly, has a considerable interest in this matter. There are a number of points which I think need to be more clearly recognised.
    1.The UK referendum was, effectively, an internal matter which did not bind the UK government to a specific course of action.
    2. The previous time we held a referendum (on voting methods) the law authorising the referendum included within it the specific requirements which government was to put into practice in the event of an affirmative result.
    3. Although I can see that the rest of Europe has a considerable interest in this „leave“ referendum it is not Europe’s business to become involved unless and until the UK government triggers Article 50.
    4. The UK is presently enmeshed in discussion about how Article 50 might ptoperly be triggered. Until this is settled nothing will happen.
    5. The construction of the Article 50 mechanism seems both peculiar and unsatisfactory. It appears to place all the advantages in the negotiating process in the hands of the Commission and the 27. The only advantage which lies with the leaving country is to be able to dictate the timing of the initial process. It seems unreasonable of the other side to attempt to dictate even this circumstance as well.
    6. There may be an exception to this point 5. It is suggested elsewhere, that, in fact, there is no legal obstacle to the leaving country, having triggered Article 50, to subsequently rescind that action. This would, of course, even up the negotiating situation immeasurably since, in the absence of an acceptable deal the UK could presumably say „OK, then, we will stay in“.
    7. This raises a subsequent point which I have not seen elsewhere. The terms of the „New Settlement“ negotiated by Mr. Cameron state „should the result of the referendum in the United Kingdom be for it to leave the European Union, the set of arrangements referred to in paragraph 2 above will cease to exist.“ However, if the eventual result of the refendum is not for the UK to leave the EU, does the New Settlement still stand??

    Mike Taylor

  13. GIUSEPPE MARTINICO Fr 8 Jul 2016 at 23:49 - Reply

    Thanks indeed, Mike for your comments and points. I think they are really interesting and important. Concerning the possibility of withdrawing a notification to leave the EU, Steve Peers argued that: “ In the absence of explicit wording, the point is arguable either way. It could be argued that since a notification to withdraw is subject to a Member State’s constitutional requirements, the Treaty therefore leaves to each Member State the possibility of rescinding that notification in accordance with those requirements. On the other hand, it could also be argued that Article 50 only provides for two possibilities to delay the withdrawal of a Member State from the EU once notification has been given (an extension of the time limit, or a different date in the withdrawal agreement). There’s no suggestion that this is a non-exhaustive list. Therefore the notification of withdrawal can’t be rescinded“ (http://eulawanalysis.blogspot.it/2014/12/article-50-teu-uses-and-abuses-of.html) I have read many articles suggesting that a possible second referendum could be on the Brexit deal. However, in my view if you notify you cannot step back, I think that a decision to remain (which is still possible in my view) should be made before activating Art. 50 but it is a personal opinion, the wording of the article is not clear unfortunately. concerning the second point I would say no because the referendum the European Council had in mind was that held on 23 June (“It is understood that, should the result of the referendum in the United Kingdom be for it to leave the European Union, the set of arrangements referred to in paragraph 2 above will cease to exist.” http://www.consilium.europa.eu/en/meetings/european-council/2016/02/euco-conclusions_pdf/) . This seems confirmed by the Joint statement by the EU leaders and the Netherlands Presidency on the outcome of the UK referendum „“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“. However, if the UK decides to remain (and I hope so) a new agreement could be reached, although it could be different from the one codified in the New Settlement document.

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