scholarly journals Brexit: la secesión de la Unión Europea entre teoría y realidad

2018 ◽  
pp. 111
Author(s):  
Alberto López Basaguren
Keyword(s):  
Supreme Court ◽  
Eu Law ◽  
Economic Wealth ◽  
The Supreme Court ◽  
The Government ◽  
Article 50 ◽  
The Uk ◽  
Practical Feasibility ◽  
The Eu

El proceso de retirada de la UE (Brexit) plantea cuestiones de gran trascendencia en el Derecho Constitucional británico y en el de la UE, a la luz del artículo 50 TUE. Algunos de los problemas planteados en el Derecho británico se han resuelto por la Supreme Court en el asunto Miller; pero otros siguen abiertos: el papel del Parlamento en la adaptación del derecho de la UE, que el Gobierno pretende desplazar a través de la asunción de una ilimitada delegación de poderes (la cláusula Enrique VIII); o el de los territorios autónomos, que pretenden ser marginados de la recuperación de competencias de la UE. El resultado de las negociaciones puede poner en riesgo la cohesión interna británica, tanto con Escocia como con Irlanda del Norte. Y las condiciones de la retirada y de las relaciones futuras entre ambos —especialmente en caso de falta de acuerdo— pueden afectar gravemente a la estabilidad económica del RU. El derecho formal a la retirada queda, así, profundamente condicionado por su viabilidad práctica.The withdrawal process from the EU (Brexit) raises issues of great significance both in British constitutional law and in EU law, according to Article 50 TEU. Some of the issues raised in the British legal system have been settled by the Supreme Court in the Miller case; but there are others still to be clarified: the role of Parliament in the task of adapting EU law, which the Government is attempting to replace via an unlimited delegation of powers (the Henry VIII clauses); or that of the devolved bodies, which the Government is seeking to exclude from the recovery of powers from the EU. The outcome of the negotiations may jeopardize British internal cohesion, in relation to both Scotland and Northern Ireland. And the circumstances of withdrawal and future relations between the UK and the EU —especially in the case of no deal— could seriously affect the UK’s economic wealth and stability. The formal right to withdrawal is thus deeply conditioned by its practical feasibility.

PULLING A TRIGGER OR STARTING A JOURNEY? BREXIT IN THE SUPREME COURT

2017 ◽  
Vol 76 (2) ◽  
pp. 217-223
Author(s):  
David Feldman
Keyword(s):  
European Union ◽  
Supreme Court ◽  
Foreign Relations ◽  
The European Union ◽  
The Supreme Court ◽  
Legal Challenges ◽  
The Government ◽  
Article 50 ◽  
The Uk ◽  
The Eu

FOLLOWING a referendum on 23 June 2016 in which 52% of voters (38% of the total electorate) had expressed a preference for the UK to leave the EU, the Government announced that it would start the process of withdrawal, in accordance with Article 50 of the Treaty on European Union (“TEU”), by notifying the European Council of the UK's decision, exercising the Government's prerogative power to conduct foreign relations. A number of legal challenges were fast-tracked to the Supreme Court. In R. (Miller) v Secretary of State for Exiting the European Union (Birnie and others intervening) [2017] UKSC 5; [2017] 2 W.L.R. 583 after an expedited hearing, the Court decided two issues: (1) whether the Government could exercise its power under the royal prerogative to give notice, or needed an Act of Parliament to authorise the giving of notice; and (2) whether the Government required the consent of devolved legislatures in Northern Ireland, Scotland and Wales before giving notice or introducing to Parliament a Bill authorising the giving of notice. The Court sat unprecedentedly with all 11 serving members. On issue (1), the Court, by an 8–3 majority, held that an Act of Parliament would be required in order to authorise the giving of notice. On issue (2), the Court unanimously held that there was no legal requirement for consent by the devolved institutions.

Exit talks may not clarify future UK-EU relationship

2016 ◽  
Keyword(s):  
Member State ◽  
Supreme Court ◽  
Prime Minister ◽  
Content Type ◽  
The Supreme Court ◽  
Business Confidence ◽  
The Government ◽  
Article 50 ◽  
Theresa May ◽  
The Eu

Significance Prime Minister Theresa May has committed herself to triggering Article 50 by the end of March 2017. No member state has made use of Article 50 and there is thus much uncertainty about what leaving and, more specifically, triggering Article 50 might involve. Impacts May's timetable could be derailed if the Supreme Court decides that the government cannot invoke Article 50 without parliamentary approval. The EU is likely to maintain its firm stance and refuse to engage in any negotiations before Article 50 is triggered. The continued uncertainty over the terms of Brexit is likely to hit business confidence and could deter investments.

scholarly journals THE SUPREME COURT'S JUDGMENT IN MILLER: IN SEARCH OF CONSTITUTIONAL PRINCIPLE

2017 ◽  
Vol 76 (2) ◽  
pp. 257-288 ◽  
Author(s):  
Mark Elliott
Keyword(s):  
European Union ◽  
Supreme Court ◽  
The European Union ◽  
Formal Process ◽  
Constitutional Principle ◽  
The Supreme Court ◽  
The Government ◽  
The Uk ◽  
Constitutional Adjudication ◽  
The Eu

AbstractIn R. (Miller) v Secretary of State for Exiting the European Union, the Supreme Court of the UK (1) held that the UK Government had no prerogative power to initiate the formal process whereby the UK will withdraw from the EU and (2) declined to recognise any requirement that the devolved legislatures’ consent be obtained in respect of legislation authorising the Government to commence the withdrawal process. This article critically examines Miller, arguing that the majority's analysis veers between unwarranted muscularity in relation to the prerogative issue and unnecessary conservatism as regards the devolution issue. The article goes on to argue that while the majority judgment's restrictive approach to the prerogative may be viewed as a progressive victory for constitutional principle, such an evaluation can be sustained only if a set of relatively traditional constitutional premises are adopted to begin with. The article also contends that the general approach adopted by the majority is problematic, given its willingness to invoke arguments of constitutional principle without adequately engaging with questions about what the pertinent principles are, and argues that such an intellectually lackadaisical mode of constitutional adjudication is to be deprecated.

Micula v Romania between International Investment Law and European Law – The UK Supreme Court Judgement – the Final or the NEXT PIece of the Puzzle?

De Jure ◽  
2021 ◽  
Vol 12 (1) ◽  
Author(s):  
Steliyana Zlateva ◽  
◽  
◽  
Keyword(s):  
Supreme Court ◽  
International Investment ◽  
European Law ◽  
Eu Law ◽  
International Investment Law ◽  
Investment Treaty ◽  
Investment Law ◽  
Uk Supreme Court ◽  
The Uk ◽  
The Eu

The Judgement of the United Kingdom’s Supreme Court in the long Micula v. Romania investment treaty dispute confirmed that the arbitral awards of the International Centre for Settlement of Investment Disputes (ICSID), rendered by tribunals established under intra-EU BITs, could be enforced in the UK. The Micula case concerns the interplay between the obligations under the ICSID Convention and EU law. In particular, it addresses the question of whether the award obtained by the Micula brothers against Romania constitutes state aid prohibited by EU law, as well as the enforcement obligations under the ICSID Convention in view of the EU duty of sincere cooperation.

The UK courts and EU law post-Brexit

2021 ◽  
Vol 20 (3) ◽  
pp. Christopher-Vajda
Author(s):  
Christopher Vajda
Keyword(s):  
Supreme Court ◽  
Transition Period ◽  
Case Law ◽  
Eu Law ◽  
National Courts ◽  
The Supreme Court ◽  
The Future ◽  
The Status ◽  
The Uk ◽  
Court Of Appeal

Following the expiry on 31 December 2020 of the ‘transition period’ under the UK/EU Withdrawal Agreement, the relationship between UK and EU law had changed. Whilst much EU legislation at that date will continue to apply in UK law as ‘retained EU law’ and judgments of the EU courts handed down before that date will remain binding on UK courts as ‘retained EU case law’, the Court of Appeal and Supreme Court can depart from that case law. Whilst EU court judgments handed down after that date are not binding on UK courts, they may be taken into account. This article considers both the status of EU retained case law and when the Supreme Court and Court of Appeal may depart from it, and the future of EU law that is not ‘retained EU case law’ and how judgments of the European Courts and national courts of its Member States may influence UK judges in the future.

Article 50 TEU: The Quest for an Orderly Withdrawal and the Possibility of Alternative Denouements

2021 ◽  
pp. 21-47
Author(s):  
Michael Dougan
Keyword(s):  
European Union ◽  
Member State ◽  
Eu Law ◽  
Legal Systems ◽  
Article 50 ◽  
The Uk ◽  
The Eu

This chapter sets out the basic constitutional framework, under EU law, governing the withdrawal of a Member State. Article 50 of the Treaty on European Union recognizes the sovereign right of any State to leave the EU and sets out a process for agreeing the terms of an orderly departure. But Brexit also required the EU and the UK to undertake extensive internal preparations, to ensure their own legal systems were ready for the UK’s departure. Moreover, Article 50 itself is drafted in only brief and sketchy terms, leaving many important decisions about Brexit to be worked out in practice. And EU law allows for other final outcomes to the withdrawal process—including a ‘no deal Brexit’; or the UK’s right to ‘revoke and remain’ under the Wightman ruling.

3. The relationship between European Union and United Kingdom competition law

2019 ◽  
pp. 57-75
Author(s):  
Sandra Marco Colino
Keyword(s):  
European Union ◽  
Competition Law ◽  
Eu Law ◽  
The European Union ◽  
National Competition ◽  
Current Interaction ◽  
Article 50 ◽  
The Uk ◽  
The Relationship ◽  
The Eu

This chapter focuses on the current interaction between European Union and UK law. EU law is currently a source of UK law. However, the relationship between the two regimes is expected to change in the future as a consequence of the UK’s decision to withdraw from the EU. The European Union (Withdrawal) Act 2018 stipulates that the European Communities Act 1972 will be ‘repealed on exit day’, which would be 29 March 2019 provided that the two-year period since Article 50 TEU was triggered is not extended. Once the European Communities Act 1972 has been repealed, EU law will cease to be a source of UK law. No major immediate changes to the national competition legislation are to be expected, but future reforms could distance the UK system from the EU rules.

10. EU Legislation

2018 ◽  
Author(s):  
Ed Beale ◽  
Libby Kurien ◽  
Eve Samson
Keyword(s):  
Direct Access ◽  
Legislative Process ◽  
House Of Commons ◽  
National Parliaments ◽  
Eu Legislation ◽  
House Of Lords ◽  
The Government ◽  
The Uk ◽  
The Eu

This chapter examines the ways in which the UK Parliament formally constrains the government and engages with European Union (EU) institutions. The House of Lords and the House of Commons both have processes to ensure that legislation proposed at the EU level has been properly reviewed before it takes effect in UK law. The ‘scrutiny reserve’, which stipulates that ministers should not agree to proposals under scrutiny, is used to elicit information about the government's negotiating position. Parliament also has a role in examining EU legislation and providing direct access to European institutions. The chapter first provides an overview of the EU legislative process, focusing on three principal EU institutions: member states, the European Parliament (EP), and the European Commission. It also considers the formal role of national parliaments in the EU legislative process, the UK Parliament's scrutiny of the EU legislation and its effectiveness, and parliamentary scrutiny after Brexit.

scholarly journals (Just) Give Me A Reason …

2018 ◽  
Vol 27 ◽  
pp. 12-35
Author(s):  
Julia Laffranque
Keyword(s):  
Human Rights ◽  
The Netherlands ◽  
Supreme Court ◽  
European Convention ◽  
Eu Law ◽  
European Union Law ◽  
National Courts ◽  
The Supreme Court ◽  
Summary Judgment

Judicial systems often wrestle with whether to sacrifice always presenting thorough judicial reasoning for the sake of an effective leave-to-appeal system. The paper outlines issues of reference to the Luxembourg Court, particularly with regard to Estonian circumstances in light of the ECtHR judgment in Baydar v. the Netherlands. The interplay between EU law and the European Convention on Human Rights in this regard is considered first, along with the importance of giving reasons, courts’ authority, the different roles of domestic and European courts, the duty of referring questions to the CJEU and exemption, consequences of non-referral in EU law, the Strasbourg Court’s role in dialogue between national courts and the CJEU, etc. Examined next are such matters as influences on preliminary references in European Union law, summary reasoning and limits to the reasoning duty (especially with regard to the Ullens de Schooten case of the ECtHR), associated division of competencies between the Strasbourg and Luxembourg courts, and finally the reasoning of the ECtHR itself as good or bad example. The author then considers the Supreme Court of Estonia’s leave-to-appeal system and the national courts’ practice in relation to Baydar, concluding that, while reasoned judgments are important and a right, no right exists for the applicant’s case to be referred by a domestic judge to the Luxembourg Court, though it is vital that summary judgment not be arbitrary / manifestly unreasonable; that Estonian courts have made reasonable use of the preliminary reference procedure before the Luxembourg Court thus far; and that they should articulate well the reasoning for referral/non-referral for litigants. The author proposes that the Estonian Supreme Court explain, exceptionally in one refusal of leave to appeal (cf. the Netherlands), that the general requirements for granting leave to appeal cover also the situation of preliminary questions to the CJEU and C.I.L.F.I.T. arguments of the CJEU. Above all, neither the interplay between EU law and the European Convention on Human Rights nor the role of national courts finding their way in complex legal surroundings should be neglected. 

Compliance with European Environmental Law—Deficiencies and Approaches: The Role of the Court of Justice of the European Union

2012 ◽  
Vol 9 (1) ◽  
pp. 91-107 ◽  
Author(s):  
Christoph Sobotta
Keyword(s):  
European Union ◽  
Supreme Court ◽  
Legal System ◽  
Environmental Law ◽  
Eu Law ◽  
The European Union ◽  
Court Of Justice ◽  
The Supreme Court ◽  
Environmental Considerations

The article discusses the contribution of the ECJ to the reduction of compliance deficiencies with regard to European environmental law. The Court is not a specialised environmental court but the supreme court of the European multilevel legal system. Therefore its contribution is primarily characterised by a concern for effective and uniform application of EU law in general while specific environmental considerations do not figure as prominently.

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