Article, Case note

The Withdrawal of the Notification under Article 50, or How to Stop Brexit

The Editors

The United Kingdom is due to leave the European Union on 29 of March 2019. On what terms it will do so, it is yet uncertain when less than three weeks are left before Brexit day.

On Tuesday next week, 12 March 2019, the UK Parliament will cast a vote on the new deal reached by Theresa May and the EU – ‘new’ because the parties re-open the negotiation talks after the UK Parliament had rejected the previous deal on 15 January 2019, inflicting a historic defeat to Theresa May.

On 12 March, the deal with the EU on the conditions for leaving the European Union may either be approved or rejected. If it is rejected, the conservative party has promised to the Parliament the opportunity to vote on whether to go ahead in just over three weeks’ time without any kind of negotiated deal; or whether to ask the EU to push back Brexit day in order to extend negotiations. In the latter case, it is not excluded that the UK will hold new elections, a new referendum, or even eventually halt the Brexit process. We dedicate this blog post to the European Court of Justice’s decision on whether the UK can withdraw the notification of the intention to leave given in March 2017.

The Wightman case originates from a request for a preliminary ruling made by the Court of Session –  the Scottish Supreme Civil Court – to the European Court of Justice in October 2018. The case in front of the referring court concerned a petition for judicial review brought by some Members of the Scottish and the English Parliaments before the Scottish Court on the 19th December 2017. The referring Court asked the CJEU whether the notification to withdraw from the EU sent to the European Council by the UK government on the 29th March 2017 could be unilaterally revoked by the government itself before the expire of the 2 years period envisaged in article 50(3) TEU.

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Article, Courts

Will European initiatives to create international commercial courts be attractive enough for foreign litigants post Brexit?

Sophie Hunter

Guy Canivet, president of the High Legal Committee of the Financial Platform of Paris recently told the press that Brexit is a real eye opener, because it triggered the need to come up with an alternative to London, in order to better respond to a change in relation between the UK and parties from the continent. With the deadline of the Brexit looming ever closer and growing tensions fueled by the uncertainty of its outcome, competition between major European capitals is under way to fulfill the gap that will be left by London on March 29 2019. Paris, Frankfurt, Amsterdam and Brussels have recently announced or created specialised international commercial chambers in their jurisdictions.

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Article, Legal Procedure

Rule of Law enforcement in the EU: The Limits of the legal enforcement of Values

Jacob van de Beeten  

  1. Introduction

Increasingly, the EU is using Treaty instruments to enforce the common values of Article 2 Treaty on the European Union (TEU) – human dignity, freedom, democracy, equality, the rule of law and human rights – in recalcitrant Member States. With the adoption of the Sargentini report in the European Parliament, Hungary is now – like Poland – facing the Article 7(1) TEU procedure under which the European Council can determine the existence of a  “clear risk of a serious breach” of the rule of law. In response, Hungary has challenged the legality of the Parliament’s vote.

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Article

Challenging Harmonisation and Uniformity in EU asylum law: A Broader Problem of International Law?

Jenny Poon 

Introduction

The conflict in Syria has brought a large number of asylum claimants across Europe into sharp relief. This is precisely the time when the Common European Asylum System (CEAS) should be closely monitored and scrutinized to ensure access to international protection for those deserving it.

The CEAS expresses political willingness by the European Union to establish a harmonised, fair, and effective asylum procedure to process asylum claims across EU Member States while complying with international law obligations to protect asylum claimants fleeing persecution.[1] The three key instruments of the CEAS include: the Dublin Convention (1990), the Dublin II Regulation (2003), and the Dublin III Regulation (2013).[2] The latter Regulation identifies the Member State responsible for examining the asylum application, which the aim to enhance efficiency, prevent forum-shopping, and promote harmonisation within the EU asylum system.[3]

This blog post argues that the CEAS as a whole has partially failed its goals of achieving harmonisation and uniformity in the area of asylum law. The lack of uniformity and harmonisation among the practices of the Member States in such an area is due, in particular, to the fragmentation of international law.[4] While some argue that EU law, as interpreted by the Court of Justice,[5] is an autonomous legal order, this blog takes the internationalist view to suggest that the EU legal order should comply with relevant international law obligations in the area of asylum law, as requested in Article 78 TFEU.

Harmonisation and uniformity in the area of asylum protection may be achieved when Member States comply with the CEAS in a coherent and standard manner, while at the same time adhering to their international law obligations such as non-refoulement, protected under the ECHR. It is important for the CEAS to be aligned with international law and in particular, the principle of non-refoulement as protected under the ECHR, for two reasons: First, to effectively protect asylum claimants and refugees; second, to prevent erosion of the international refugee law regime by the variation of interpretation by EU Member States.

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