As an English lawyer practising in Italy for 15 years, I have valued the certainty that EU law has provided in legal situations in which international clients and business find themselves, where there is a conflict between the laws of more than one member state. However, most voters in the EU Referendum cited the belief that EU law prevented the UK fom having sovereignty over its own law-making powers, and in the months and years leading up to the withdrawal from the EU the UK is going to have to turn back the clock and re-write the rules.
Although a central argument to the campaign for the UK to leave the European Union was sovereignty, it was never fully explained to the voters that the UK has actually always had the option of limiting the adoption and application of EU law, and has successfully negotiated on many occasions the right to stand alone from other member States.
What exactly is EU law?
The European Union describes it as follows:
“EU law – which has equal force with national law – confers rights and obligations on the authorities in each member country, as well as individuals and businesses. The authorities in each member country are responsible for implementing EU legislation in national law and enforcing it correctly, and they must guarantee citizens’ rights under these laws.”
Eu law is made up of about 80,000 pages of binding and non-binding decisions, covering 32 topics such as Agriculture, Consumers, Culture, Justice, Public Health and Transport (See full list on EU website). It covers policy areas that range from the management of the European Union’s external borders to judicial cooperation in civil and criminal matters and police cooperation. It also includes asylum and immigration policies and the fight against crime (terrorism, organised crime, cybercrime, sexual exploitation of children, trafficking in human beings, illegal drugs, etc.).
EU law includes Regulations which are directly applicable in each member state, and Directives which are legislative acts setting out a goal that all EU countries must achieve, but left to the individual countries to devise and implement their own internal national laws with the aim of reaching this goal.
Recommendations and Opinions are also part of EU law but not binding, they allow the institutions to make their views known and to suggest a line of action without imposing any legal obligation on those to whom it is addressed. For example, a Recommendation was issued to the UK government in 2014 stating that the EU considered the policy of not permitting British citizens to vote in UK elections after they had been non-resident for over 15 years to be unlawful, as it was penalising people exercising their Treaty of right of freedom of movement. This however was not binding, no action was taken other than to promise a Votes for Life bill in the 2014 election manifesto, but by the time of Referendum there were still hundreds of thousands of British citizens living in the EU but disenfranchised. (See previous post on this Recommendation).
An enormous amount of EU law was made after the Treaty of Maastricht was signed in 1992, creating the three pillars of the European Union. In particular, the Justice and Home Affairs pillar focussed on improving cooperation between all Member states in law enforcement, criminal justice, asylum and immigration and judicial cooperation in civil matters.
The Maastricht Treaty was an especially crucial moment for the UK’s participation in the EU when the Conservative Government of John Major first negotiated an opt-out from economic and monetary union, and from the Social Chapter annexed to the Maastricht Treaty which gave the Commission greater powers to impose social legislation.
What is EU law?
The UK also negotiated an opt-out of the Schengen Agreement when this was implemented by the Treaty of Amsterdam in 1997. Later it also successfully limited the effect of the Charter of Fundamental Rights of the European Union, a part of the 2007 Treaty of Lisbon, limiting the extent that European courts would be able to rule on issues related to the Charter if brought to courts in the UK.
Both the UK and Ireland, at the time of the 1997 Treaty of Amsterdam, obtained a flexible opt-out from legislation adopted in the area of Freedom, Security and Justice. This allows them to opt-in or out of legislation and legislative initiatives on a case-by-case basis. The most recent example of such an opt-out was the EU Regulation on Sucession and Wills 650/2012. The UK’s main reason for the opt-out was to avoid the possibility of claims for “clawback” of lifetime donations in inheritane claims, this is a central part of succession law in civil law countries such as Italy, but not reconcilable with UK law where a gift is irrevocable. The opt-out now means in practice that the 2012 Regulation does not apply to the estates of deceased persons, where the succession is opened in the UK.
When the UK leaves the European Union it will have to consider each clause of EU law as to what gaps will be left in UK law without them, and how to replace or re-draft each one. Each law, from environmental regulations to divorce jurisiction to rules that govern the enforcement of court orders, will have to be studied and the UK will decide which will be kept as part of UK law. It is not surprising that the government’s legal bills are going to be substantial, even since the Referendum the UK government is estimated to have spent millions on legal advice, although for many years to come no lawyer will be able to advise with any certainty. One scenario that I predict, is that much of EU law, which the UK has been closely involved in drafting over the last 40 years may simply be transposed into internal UK legislation. If that does happen, would it have been worth claiming back sovereigny just to use the EU law that was already in place?
