The referendum in United Kingdom on the BREXIT and European Union: a matter of fundamental principles

© Pasquale Policastro 2016 – draft 30/06/2016

The process of development of European Union has been enriching its treaties with a number of principles, which rule, as we may say, the constitutional relations within European Union, as well as with the latter, its Member States and its societies. Such principles are especially important for two reasons:

1) Many competences conferred to the European Union rule questions that belong, substantively to the constitutional matter of the Member States, and there are perceived as such by the national societies;

2) The limits of European Union activity are determined by the principle of conferral.

This principle works as a constitutional principle of European Union. It means that also the institutions are bound to such principle.

The conferral of competences for what concerns the institutions of European Union shall therefore be understood as a principle that no act and no judgement shall come from European Union institutions without a power stemming from the Treaties. In this sense also the institutions of all the Member States are bond by the constitution and law. Therefore the principle of acting within the framework of the rule of law is not only an fundamental value of European Union (art. 2), but is also “a general principle common to the constitutional traditions of Member States”. Indeed no State authority is sovereign in Europe, on the base the possibility to act beyond law (power of exception).

Such elements have to be remembered in any case. Some occasions, such as the United Kingdom’s referendum has a specifically important nature. And this, not because United Kingdom is special with respect to other States: article 4.2 underlines indeed the equality of the Member States before the treaties. The importance of the “Brexit” referendum lies in the fact that it is an undeniable test for the institutions and for the Member States concerning the respect of the values of the treaties, through which the same treaties legitimate towards the societies.

For this reason, the application of article 50 TEU, concerning the possibility of a Member State to withdraw from the European Union, shall be considered with special attention.

Article 50:

Section 1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.

Section 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. Section

Section 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.

Section 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.

We will firstly consider in brief Article 50, for what concerns the most relevant aspects related to the present situation. Section 1 of article 50 gives to a State the power to decide to withdraw from the Union. The decision to withdraw shall be taken according with its own constitutional requirements. Section 1 involves two specific elements: the power of decision, which belongs solely to the State, and the requirement, that the decision shall be taken according with the constitutional requirements of the State, which wishes to withdraw. So there is no any power of European Union in this sense. Section 2 of article 50 demands the State to “notify to the European Council” the decision. The use of the term “notification” is very important, since the procedure may not start before the notification and the withdrawal procedure demands a formal notification, which following the understanding of such term in European law, demands at least a clear and exhaustive explanation of the legal ground of the Member State on the legal base the notification is done. In this field, no presumption from the EU or other Member States is admitted. Furthermore, the notification if given to the European Council, which shall express guidelines on which base, “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”. The beginning of the negotiation demands a formal decision of the Commission, and the appointment of a negotiator (art. 218 (3)). The Treaties, however are still binding the Member States until the agreement in question have been concluded or “failing that, two years after the notification”. However, the European Council unanimously may extend this period.

This brief commentary is enough to explain that: a) in order to withdraw a Member State shall first of all act in accordance its internal law. No derogation may be demanded or accepted; b) the State shall notify the European Union, only when unequivocally the legal conditions are met. No timing may be urged by anyone; c) the European Council is in its entirety is the sole organ which may receive the notification the State who wishes to withdraw, and provide guidelines for the negotiation process; d) the Member State who wishes to withdraw remains a full Member of European Union until the date of entry into force of the agreement on the future relations with the Union, or “failing that, two years after the notification”. However, the term may be extended by an unanimous decision of the European Council, in agreement with the Member States; e) the Member State who wishes to withdraw, fully participates to the European institutions until expiry of the terms. Obviously the Member of the European Council of the Council of this State may not participate to the discussion or the voting concerning their withdrawal, but only that. No extensive interpretation may seem possible to admit.

In particular, the Members of the European Parliament and of all the other institutions and bodies, remain at their place; f) the cooperation with a State, which aims to withdraw, may be very substantive, as it is illustrated by the case of Norway where the possibility of full Membership, widely accepted by the Parliament, was rejected by a referendum. For this reason after the notification, the decision of the European Council prior to the negotiation appears in itself very complex.

This short explanation of Article 50 appears quite eloquent. However, European Treaties have a significant quantity of general provisions that are included in the Treaty of European Union and the Treaty of the functioning of European Union. Such principles shall guide any activity of EU and any policy. Given the importance of the matter European Union. Section 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. Concerning the possible withdrawal of Great Britain from EU, to verify the compliance with the values and the principles related to such provisions and their possible practical application appears extremely meaningful. Let us see first at a first glance what are these values and principles. First of all, two of the founding values of EU are freedom, democracy and rule of law (Article 2 TEU). Secondly, that “The Union shall respect the equality of Member States before the Treaties as well as their national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government.” (Article 4.2 TEU). Thirdly, that “Pursuant to the principle of sincere cooperation, the Union and the Member States shall, in full mutual respect, assist each other in carrying out tasks which flow from the Treaties” (art. 4.3 TEU). Of the fundamental principle of the conferral of competences, we have already been speaking above.

On the base of such principles, everything stemming from freedom and democracy shall be welcome. It obviously not only beyond the powers of the European Commission, but contrary to the spirit and the letter of the Treaties that the President of the Commission Junker says during a session of the European Parliament to Mr. Farage, the leader of the UK Independence Party (UKIP), however questionable his political position may be, that he “wonders how” a Member of the European Parliament is in the Parliament. Humourism, beyond the right, is a form of rhetoric hard to be admitted.

Furthermore, the sovereign power of United Kingdom to demand the withdrawal shall be respected too. The duty of the Union is to respect the equality of the Member States in front of the treaties, and this irrespective from the fact that they may be about to demand their withdrawal from the Union or not. The Union shall also respect the constitutional identity of the Member States, “inherent in their fundamental structures, political and constitutional”. The Government of UK has the exclusive power to determine whether to notify the decision to withdraw, because it has obviously the exclusive power to verify whether the due process law for determining the decision to withdraw has been accomplished or not. The European Union shall indeed “respect the equality of Member States before the Treaties as well as their national identities inherent in their fundamental structures, political and constitutional”. Any attempt to do otherwise, is a violation of the Treaty and the lack of the fulfilment of the duty of sincere cooperation. European Union has, however, already failed to deal with the principle of sincere cooperation with United Kingdom. During the preparation of the referendum, European Union, in respect of the value of “democracy” and sincere cooperation, should have underlined that, irrespective of the result of the referendum, the cooperation of EU and United Kingdom would have been developing along the best possible path. The example of Norway, where, after a wide parliamentary support of the Treaty with European Union the people rejected it in a referendum, should have been properly highlighted. Presently the cooperation between Norway and European Union ranges well beyond European Economic Area. To express some due analogy with such an example would have been contributing to reassure the stock exchange before and after the referendum. This has not been done, and so we may say that Commission failed to “promote the general interest of the Union and take appropriate initiatives to that end” (art. 17 TEU).

Indeed, the strong failure of some Member States, with Germany, France and Italy on the top of them, as well as of the Commission in the principle of sincere cooperation stems from the fact that it is not clear at all whether the referendum held in UK is binding or not. British constitutional law, has it generally recognised, is based on Parliamentary sovereignty. According with Dicey: “The principle, therefore, of parliamentary sovereignty means neither more nor less than this, namely that “Parliament” has “the right to make or unmake any law whatever; and further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament”. The truth of these doctrines, has truth has “never been denied”. In the development of parliamentary sovereignty, customs, which do not need a legal change, and enacted customs, have a significant importance. British Constitution includes indeed many Acts enacted with the time, which are not codified in a single document. In particular we have The Parliament Acts (1911–49) regulate the respective powers of the two Houses of Parliament. Nothing however in the relevant Acts aims to change the principle of Parliamentary Sovereignty. Parliament Act conferred only more powers to the House of Commons with respect to the House of Lords. Concerning the referendum, the traditional British approach is that referenda are in principle consultative and addressed to abrogate Acts of the Parliament. Indeed historically the referendum has been admitted notwithstanding critical opinions (such as the one of Maine who considered referendum as the shift from decision taken on the base of knowledge and decisions taken on the base of ignorance), to limit the growing powers of the Cabinet. Not by any means, the referendum may derogate to the sovereignty of the Parliament. Indeed, the content of the Acts relevant for the referendum, and namely “Political Parties, Elections and Referendums Act 2000” is procedural in nature and does not seem by any means to change Parliamentary sovereignty principle. Also European Union Referendum Act 2015, is procedural in nature, and does not provide any mention to any direct effect of the answer to the question: “Should the United Kingdom remain a member of the European Union or leave the European Union?”.

In this sense Brexit referendum, in the light of British constitution, appears more as the beginning of a process that shall be ended with an Act of the Parliament, to be submitted to another referendum. This aspect justifies the position that British politicians had in the latest days. The attitude of European Commission and some European Member States seems more influenced by a lack of information. If not the case, the attitude of European Union may appear the expression of a Union that shall be reformed. Indeed after a stage of “pensée unique” the position of “punishing Great Britain” appears, once more the result of a deliberate attempt, by means of the instrumental and even incorrect treatment of European rules to keep apart political options, which are not conforming to the approaches of leading countries. An important

German philosopher, Jürgen Habermas recently defined German positions as “solipsist”.

To limit ourselves to criticism, means at this stage not to take properly into account the lesson of philosophy. The present situation demands instead to act, for the sake of a new Europe, for the sake of a united Europe.

Pasquale Policastro, Szczecin University, 30/06/2016

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