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Politics & Law Series: Expert Comment

Why the post-Brexit search for rules?

Dr Elaine Fahey, Senior Law Lecturer in The City Law School, reminds us of the flexibility of EU Law.
by City Press Office (General enquiries)

By Dr Elaine Fahey

One of the greatest post-Brexit challenges is the elementary question: whose rules (UK, EU, Public International law) prevail now in deciding ‘exit’? And how do we follow those rules? And who is ‘we’ here?

Elaine FaheyWhat the rules are is a perennial problem of EU law but it is not necessarily the problem of contemporary times. The EU has evolved as a construct of Public International law over successive decades, with its distinctiveness and autonomy as its chief characteristics, according to its Court. The massive rush to search for the parameters of Article 50 TEU ‘exit’ so as to understand EU law is arguably quite ironic, certainly from an EU law perspective.

Complex Eurozone measures

Strictly speaking, a large problem of contemporary EU law is either the absence of any legal rules or, conversely, the hyper legalisation of policy. When the going gets tough, the flexibility of the EU treaties as mere constructs of public international law has been successively manipulated by the Member States. Thus international Agreements have been used in recent times to bypass the EU treaties and their institutions (E.g. European Stability Mechanism) or alternatively, to prop up complex Eurozone measures with an otherwise thin veneer of legality (e.g. Single Resolution Mechanism).

In other instances, however, there are no rules and the EU and its Member States are happy to exploit the void. E.g. witness the EU 27 recently negotiating within the European Council without the UK Prime Minister- yet the EU 27 is not the legal constituency of the European Council nor does it hold per se a legal quorum - which is, however, merely implied and not express and understood to comprise all 28.

And failing that, irony prevails. The EU Commissioner for the UK was the first Brexit institutional casualty, despite the stated role of the Commission not to represent the Member State interests.

On a more practical level, the Eurozone is not an autonomous legal construct of EU law despite its significance.

Nor is the non-Eurozone collective of the Member States a legal entity per se but a mere portion and yet internal market, the ultimate collective ideal, applies to both the Eurozone and non-Eurozone separately and distinctly.

Ironic limits of flexibility, pragmatism and innovation

This state of affairs permits striking developments: witness the Court of Justice negotiating the EU’s accession to the ECHR and then striking it down. This is arguably unprecedented in public international law and shows the curious pragmatism and lack of formality surrounding EU law, allowing such developments, innovations and ironies.

We are now faced with the ironic limits of flexibility, pragmatism and innovation of the EU as a construct of public international law, sustained and tolerated by Member States and EU institutions alike. There is a distinctly ironical rush for ‘law’ to help resolve the Brexit aftermath whereas in reality pragmatism must be viewed as dominant reality of EU law. And it is not necessarily a problem, so as to permits complex issue be resolved through pragmatic means, such as the text of Article 50 TEU, which was in all likelihood never intended to be actually used because of its vague parameters as to how to leave, when leaving means left and how the leaver becomes almost and fully ‘left'.

European Stability Mechanism

The European Stability Mechanism is the crisis resolution mechanism for countries of the euro area. The ESM issues debt instruments in order to finance loans and other forms of financial assistance to euro area Member States. The decision leading to the creation of the ESM was taken by the European Council in December 2010. The euro area Member States signed an intergovernmental treaty establishing the ESM on 2 February 2012. The ESM was inaugurated on 8 October 2012.

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