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Emilija Berzanskaite
4th November 2021
Institutional law Justice & Litigation

FIDE 2021: Brexit Lessons and Plenary Panel Discussion

Following the speeches of the opening ceremony, all of the participants of the FIDE 2021 Congress took part in two plenary sessions on the legal lessons drawn by Brexit and on the EU’s future role both at home and abroad.

Emeritus Professor Paul Craig delivered a speech on the legal lessons to be drawn by the United Kingdom’s withdrawal from the EU. He started by noting the immense legal complexities, both from EU law and national law perspective, of the withdrawal process and the establishment of a future relationship between the UK and the EU. In this sense, he summarised the process in two steps: (i) bringing the whole of the EU acquis into national law (what is often referred to as ‘retained EU law’) insofar as not doing so would create an enormous legal void in the UK legal system, and (ii) deciding what provisions of the retained EU law were to be kept, repealed or amended.

He then reflected on the current situation concerning the legal obligations arising from the withdrawal process, regretting that the UK government has been consistently implying that such obligations vis-à-vis the EU (for example, as regards the Ireland/Northern Ireland Protocol) can be simply pushed aside after they have been accepted. In that regard, he also criticised the assumptions made throughout the Brexit process on the notions of ‘exercising sovereignty’ and ‘taking back control’, under which the UK Parliament would reassume the powers once vested in the EU. Professor Craig noted that Parliamentary sovereignty has actually weakened as a result of Brexit, citing as examples the lack of control on the approval of the EU-UK Trade and Cooperation Agreement, the increase of power of the executive (in the form of, inter alia, so-called ‘Henry VIII clauses’), as well as the reality that while in the EU, the UK actually secured beneficial opt-outs and preferential treatment.

His speech was followed by a plenary discussion of EU law in context, specifically on the EU’s readiness for future challenges, with a panel composed by journalist Caroline de Gruyter, political theorist Luuk van Middelaar and economist George Papaconstantinou, moderated by EU law professor Christina Tobler. Ms. de Gruyter started by noting that the EU is an internal project that is reactive by nature, its main objective being the maintenance of peace. This leads to a permanent state of internal negotiations that result in difficulties to plan for the long-term. Drawing a parallel between the EU and the Habsburg empire, she stressed that everything in the EU is a permanent compromise between differing views among the Member States, which leads to non-perfect solutions.

Professor van Middelaar reflected on the difference between the EU’s initial response to the COVID-19 crisis, which was driven by ‘panic’ and the final outcome, marked by the joint vaccine procurement and recovery fund ‘milestones’. According to him, both the Eurozone and the COVID-19 crisis have proved that the EU needs ‘panic’ to deliver effective policy outputs, and specifically the COVID-19 crisis has revealed the emergence of an EU public sphere that proved to be a critical driver of EU action. 

Professor Papaconstantinou also noted that even if the EU has learned a lot from the Eurozone crisis and the economic toolkit was much more in tune to address the COVID crisis, important and difficult debates lie ahead, especially concerning the EU’s institutional framework, which by nature is ‘suboptimal’. He finally noted that the EU is falling behind the climate and digital challenges, and that the Next Generation EU recovery fund, despite it being a milestone, lacks a more comprehensive EU-wide approach as it can be seen as a collection of national policies and priorities.

The discussion lead to further interesting points being raised, such as the current thread reflected in the Eurobarometer that EU citizens desire for more EU action, the need for the Court of Justice to communicate more and establish more links with EU citizens, such as is the case with the US Supreme Court, or the more general problem on Poland and Hungary slowly becoming autocracies within the EU.

News on other highlights from the FIDE Congress will be available soon on EU Law Live.


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