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The Primacy of EU Law and its implications

by Frank Schnittger Mon Dec 10th, 2018 at 12:52:12 PM EST

The European Court of Justice has found, in a clear and lucid judgement, that a sovereign state which has issued a notification (under Article 50) of its intention to withdraw from the European Union, retains the sovereign right to withdraw that notification "in accordance with its own constitutional requirements" until such time as it takes full effect.

Unlike the Advocate General's earlier advisory opinion, it does so solely in accordance with European Law as established by the treaties, without relying on "custom and practice" in international law, or the Vienna Convention on the Law of Treaties (VCLT), which has not been ratified by the EU or France and Romania, although it notes that the VCLT "corroborates" this view.

The main arguments it uses to come to this view include the following:

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The UK can unilaterally revoke its A.50 notification

by Frank Schnittger Tue Dec 4th, 2018 at 04:59:50 PM EST

The Advocate General of the European Court of Justice has advised the Court that it should find that the UK can unilaterally withdraw its A.50 notification to leave the EU, subject to certain conditions. His finding is not binding on the Court, but it would be unusual for the Court to reject his finding in its final ruling, which could come in the next few weeks.

In doing so, the Advocate General has rejected the view of the EU Council and the EU Commission that any revocation of an A.50 notification should be subject to the unanimous agreement of the EU Council. He has also rejected the view of the UK government that the issue is entirely academic and hypothetical, and therefor should be considered inadmissible by the court.

Finally, and most dammingly, he has rejected my arguments to the effect that A.50 provides for no such right, and he goes on to quote the Vienna Convention on the Law of Treaties as providing for such a right, even while noting that the EU, France and Romania are not signatories to that Treaty. Instead he argues (para. 79) that the rules of customary international law are binding upon the Member States and the European Union and may be a source of rights and obligations in EU law.

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Back-stabbing the back stop

by Frank Schnittger Sun Dec 2nd, 2018 at 05:21:43 PM EST

There has been much speculation as to what will happen when Theresa May loses the Commons Brexit vote, as she almost certainly will, on Dec. 11th. Most observers don't expect that vote to be even close, with some estimating a margin in excess of 100 votes. Some speculate such a defeat will finally trigger a challenge to May's leadership. But if Rees-Mogg's co-conspirators couldn't even muster 48 votes the last time around, it seems hardly likely they will be able to achieve the 158 votes required to win a vote of confidence against her leadership and trigger a leadership election.

The downside for them is that the rules dictate that they won't be able to issue a renewed leadership challenge for another 12 Months if they fail. So they had better get it right the first time around. A lot will depend on how badly she still wants the job. So far she has won some grudging admiration even from her opponents for how she has stuck to her task against seemingly insurmountable odds.

The other downside is that the rules suggest a 12 week timeline for a full leadership challenge and the election of a replacement, which almost takes us outside of the Brexit timeline altogether. It's hard to see the EU Council extending the A. 50 deadline just to allow a Prime Minister Johnson settle into his job. They have fulfilled their A.50 obligation to negotiate an exit deal. He can take it or leave it. The internal machinations of the Tory party are none of their concern.

But there is an alternative scenario...

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Can the UK reverse the Brexit process?

by Frank Schnittger Tue Nov 27th, 2018 at 06:46:32 PM EST

The European Court of Justice is today hearing a case to determine whether a state has the right to unilaterally withdraw an A. 50 notification of its intention to leave the EU. (case number C-621/18). The Inner House of the Court of Session in Scotland decided to refer the following question in a preliminary reference to the Court of Justice of the European Union:

`Where, in accordance with Article 50 of the TEU, a Member State has notified the European Council of its intention to withdraw from the European Union, does EU law permit that notice to be revoked unilaterally by the notifying Member State; and, if so, subject to what conditions and with what effect relative to the Member State remaining within the EU'.

The Irony of the ECJ deciding on the UK's rights in this matter has not been lost on some observers, with some Brexiteers outraged the court is even considering the matter. A.50 provides that a member who has left the EU and wishes to rejoin must do so via the standard A.49 accession procedure. But A.50 is silent on what happens if a member issues an A. 50 notification and then changes their mind on the matter within the 2 year negotiation period before they actually leave, so some more clarity is welcome.

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This is what BREXIT IS BREXIT means

by Frank Schnittger Sun Nov 25th, 2018 at 01:09:08 PM EST

The Brexit deal has been agreed by the European Council in the time it would take to eat a good breakfast brunch in a Brussels brasserie. No point in wasting a whole day on this sort of thing. It's happening for the optics only, to send one clear message to all concerned: THIS IS BREXIT, this is the deal, we are not going to revisit it. Take it or leave it.

The House of Commons can huff and puss all it wants, vote for it, against it, amend it to its hearts content: But this is the deal. Mutti Merkel has said so. She wouldn't have wasted her time coming to Brussels if anyone was going to reopen the debate.

Boris Johnson is absolutely right: This Brexit deal is a historic mistake, and he should know. He has been the prime mistake maker: leading the UK up the garden path of delusional dreams. Nothing encapsulates that delusion more than the gap between what this deal delivers for the UK and what the Brexiteers said they would be able to negotiate in "the easiest deal in history".

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Deal done?

by Frank Schnittger Wed Nov 14th, 2018 at 02:10:14 PM EST

The EU and UK negotiating teams have finally come to a deal just in time for a November EU Summit and a pre-Christmas rush to have "a meaningful vote" on the deal in the House of Commons. There is no telling what mood conservative law makers will be in after they have been exposed to the Tory faithful back in their constituencies over the Christmas period. So the UK government strategy seems to be to get this over with as quickly as possible.

Initial reaction in the UK has been almost universally hostile even before the precise text of the deal has become known. This is where various Brexiteer delusions meet the harsh winds of reality: Boris Johnson is not altogether wrong when he claims that the deal is "vassal state stuff" with the UK continuing to be subject to some of the rules of the Single Market without having a direct say in their development over the years.

Ostensibly that has all come about because of a shared EU UK commitment to avoid a "hard" customs border within Ireland. Had it not been for Ireland's continued membership of the EU, the fate of the Irish border would not have merited a moments thought on the part of Brexiteers, and indeed it it did not occupy any media or mind space during the referendum campaign, despite the Irish government's frantic efforts to raise the alarm.

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TWO MORE YEARS OF WAR IN USA

by ARGeezer Wed Nov 7th, 2018 at 04:58:42 AM EST

The Democrats have decisively retaken the House of Representatives, but the 'Blue Wave' was met with a cancelling 'Red Wave'. So Trump and Trumpism was not as well repudiated, as might have been hoped. But the position of the Democratic Party has greatly improved.

The Democrats have also greatly improved their position in state houses. A significant majority of US residents will now live in states with Democratic governors. This will be decisive for election supervision in 2020 and for the redistricting that will follow. Given that the Democrats only have the House, that leaves them still in the position of being the opposition until 2020, which I believe will also be a good year for Democrats.

With the House comes the chairmanship of powerful investigative committees. The Chairman of the House Ways and Means Committee can, by law, directly request the tax returns of President Trump. The IRS, under Trump, might refuse, but the law is clear. Adam Schiff will become chair of the House Intelligence Committee and Elijah Cummings will become Chair of the House Committee on Oversight and Government Reform. These are all very intelligent and capable men. It will be an interesting two years.  

Front paged - Frank Schnittger

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Glimmers of hope?

by Frank Schnittger Fri Nov 2nd, 2018 at 12:54:12 PM EST

Theresa May has survived numerous threats to her leadership to fight another day after a reasonably well received Tory party conference speech and UK Budget. The mood music on both sides of the Brexit negotiations appears to be that a deal can still be done in late November or early December at the latest. The adults have entered the negotiating room and remaining differences are being chipped away. A formula of words will be found to paper over the cracks and arrive at some sort of an agreement.

The markets will breath a sigh of relief and Sterling will rise. Much of he media will hype the achievement of a deal almost regardless of the content. Dire warnings of the consequences of "no deal" have had their effect of dampening expectations and only the churlish will point out how far short the deal falls from the Brexiteer claims of "the easiest deal in history" achieved because "they need us more than we need them".

My skepticism over the prospects of a substantial deal has always centered on May's ability to get any such deal through parliament. Have expectations been reduced enough to make the deal palatable? Are Brexiteers sufficiently desperate to agree any deal so long as it gets the UK out of the EU? Will Remainers vote for a deal so obviously worse than full membership because it avoids the nightmare "no deal" scenario? Can the DUP ever be appeased?

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Government formation in Sweden

by fjallstrom Wed Oct 31st, 2018 at 12:10:38 AM EST

When last we left of, the election night, things ended inconclusive. And not much has changed.

To recap, the left bloc got 144 seats and declared themselves winners. But so did the right bloc with 143, on account of the left bloc losing more. And of course the far right Sweden Democrats with 62 seats also declared themselves winners.

Front paged - Frank Schnittger

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Brexit in Northern Ireland

by Frank Schnittger Thu Oct 25th, 2018 at 03:02:06 PM EST

Letter to the Editor, Irish Times.

A Chara,

Newton Emerson's article on Leo Varadker having a "tin ear" on N. Ireland is notable chiefly for the for the quality of the comments beneath it in your on-line edition. [Leo Varadkar continues to show a tin ear to the North, Opinion, 25/10/2018]

For all his criticism of the DUP, Newton remains of the view that Brexit is somehow just politics as usual, and the usual rules of politics should apply. But to quote WB Yeats, all has been changed, changed utterly, by Brexit.

Time was when Taoisigh had to tip toe around unionist sensitivities for fear of exacerbating a very dangerous situation. Bertie Ahern's finest achievement was his contribution to the peace process. He deserves a reprieve from political purgatory for that alone.

But the DUP's adoption of a pro Brexit policy in N. Ireland, against the wishes of 56% of it's electorate, is a full frontal attack on democracy, the peace process, the Good Friday Agreement, and all that is decent in Irish politics. To imagine it can now be business as usual in the aftermath is delusional.

Frankly, the DUP have now been written out of the script as far as the future of Ireland is concerned. Loyalists can continue to vote for them if they wish, but no one will take them seriously. What Sammy Wilson "thinks" is good for satirical and comedy columns only.

Mr. Varadker's job is to protect the interests of the people of Ireland from the very serious economic and political implications of Brexit. If that upsets some unionist or brexiteer sensitivities, then so be it. A "tin ear" can be useful in drowning out irrelevant noise. Certainly no one will take the DUP seriously outside its heartlands of north Antrim and east Belfast.

There will be no functioning N. Ireland Assembly or Executive while the current crop of DUP "leaders" are in power, and until Brexit is done and dusted, one way or the other. Not only will the DUP be sold down the river by Theresa May, they will be the laughing stock of everyone else.  

Leo Varadker can bank a few thousand extra votes every time the DUP excoriates him. Michael Martin [Leader of the opposition and Fianna Fail] must be green with envy.

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The Good Friday Agreement for slow learners

by Frank Schnittger Wed Oct 17th, 2018 at 09:42:59 PM EST

I don't like saying "I told you so" and I have a policy of not simply replicating stuff I have read elsewhere, so where do you begin when the Brexit negotiating process is panning out precisely as you expected? It's like watching a supposed thriller where every new twist has been so well flagged in advance it all gets boringly predictable. I have avoided Hollywood movies for years because the script always seems to follow the same formula to the point where you cannot identify with any of the characters and you just don't care what happens to them. The scriptwriters are just playing with your emotions and seeking to manipulate your fears.

And so we have Theresa May continuing to play out her role as the designated fall-girl, seeking to bring home a deal you just know will be rejected by the House of Commons. You have the EU Commission and Council playing out their role as the big, inflexible, bad, pack of wolves seeking to bully and disrespect the game and pugnacious Mrs. May. You have May continuing the fight even as some of her supposed warriors fall by the wayside - only to betray her by sniping at her from the ditches.

And you have the cantankerous Irish only itching for a fight and being as awkward as possible. Why can't everybody just be reasonable and get along? My sociology lecturers used to joke that "common sense" was rarely common and almost never sensible. What is obvious to some can be very difficult for others. What works in one context can be sheer madness in another.

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The Silly Season

by Frank Schnittger Tue Oct 2nd, 2018 at 03:44:02 PM EST

August is traditionally termed "the silly season" in the northern hemisphere anglophone media because that is the time when governments, legislatures, and their associated media handlers are on holidays, and newspapers are stuck with having to make up their own news. Many editors keep a stock of non-time specific stories which they can use to fill their column inches and keep their punters entertained on the beach or wherever else they feel an urge to keep connected to "the real world".

In the UK, the silly season often extends to the party conference season in late September/early October just ahead of when Parliament, the Courts and the Universities  traditionally emerged from their summer hiatus. It probably dates back to the time that September was the harvest season, and no one could be expected to be away from their country estates until the crops were safely garnered in.

And so we have the Labour Party conference where Corbyn continued his slow dance of moving to the political centre, supporting a second referendum as a decidedly second choice to his preferred option of a general election to put the Tory government out of it's Brexit misery. Now we have the Tories disporting themselves in their patriotic red white and blue colours, declaring their undying love for the Union, (the UK, that is) and telling Jonny foreigner where to get off.

It is time for the EU to get realistic, apparently, and put forward an alternative to the Prime Minister's absolutely fabulous Chequers proposals. You couldn't make this up...

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Chequers is a red herring

by Frank Schnittger Sun Sep 23rd, 2018 at 08:30:58 PM EST

In all the hullabaloo about the EU's rejection of the Chequers proposals, one little detail has been forgotten: The Chequers proposals were never going to be part of the Brexit agreement in the first place. If agreed, they would have been part of the proposals for the future relationship between the EU and UK - as contained in a non-binding "Political Declaration" - to accompany the legally binding Brexit agreement.

The Brexit agreement itself is concerned mainly with the UK's exit payment, the treatment of EU nationals in the UK and UK nationals in the EU, and with the back-stop on the Irish border.  According to all parties, that Brexit agreement has been 90% agreed, and the UK even signed up to the EU's outline proposals on the backstop in December 2017.

Theresa May only got cold feet on the deal in March 2018 when the EU produced a legally enforceable text which defined how it would work in detail.[Pages 108-116 of attached draft Brexit Agreement (PDF)]. Realizing that a failure to secure full access to the EU Customs Union and Single Market would result in some kind of customs or regulatory difference and therefore control requirements between Great Britain and N. Ireland, she caved in to DUP pressure and declared no British Prime Minister could ever agree to this.

Except she already had agreed to it (in principle).  So the row over the EU rejection of the Chequers proposals (which had already been killed off by internal Tory party opposition before they ever got to Salzburg) is nothing but a red herring to distract attention from her real difficulty with the DUP. The political declaration to accompany the formal Brexit Treaty can be as vague or aspirational as she likes, referencing Chequers, Norway or Canada +++, but whatever it contains is not legally enforceable and won't be agreed in detail until towards the end of the transition period in any case.

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The Guardian puts the boot in

by Frank Schnittger Fri Sep 21st, 2018 at 12:48:05 AM EST


The Guardian has been excoriating Theresa May for her Salzburg performance: Macron puts the boot in after May's Brexit breakfast blunder:

The spin from Downing Street had been that Theresa May's meeting with her Irish counterpart, Leo Varadkar, shortly after breakfast in the margins of an EU summit in Austria, had been "relatively warm", albeit "frank". The dawning truth later that evening was that, in a premiership littered with missteps, May had made one of her worst errors of judgment as the two leaders and their teams met in a private room in Salzburg's Mozarteum University.

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Day of reckoning approaches

by Frank Schnittger Wed Sep 19th, 2018 at 10:56:46 AM EST

We're now moving into the Brexit negotiation end-zone with EU leaders trying to give Theresa May as much cover as they can ahead of the Conservative and Labour Party conferences from September 23rd to October 3rd.  After that they will expect significant concessions form the UK side particularly on the Irish border back-stop to clinch a deal.

But the UK side is singing an altogether different tune and are doubling down on their reneging on last December's deal on the backstop. They claim that allowing N. Ireland to remain within the Customs Union would shatter the constitutional integrity of the UK, and that "no British Prime Minister would agree to this".

For the Irish government, this represents a particularly difficult dilemma, because a "no deal" Brexit - now being re-branded as a "World Trade rules Brexit" - could be just as damaging to the Irish economy as to the UK. Something has to give, and the UK is betting that the Irish government, or EU support for the Irish position, will be the first to fold.

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Hungary and Poland: Rogue states threatening the EU?

by Frank Schnittger Fri Sep 14th, 2018 at 02:46:01 PM EST

Hungary and Poland pose worse threat to EU than Brexit

Unforeseen and shocking political developments in another member state have placed Ireland at the centre of the biggest crisis facing the EU. No, I am not talking about Brexit but the breakdown of the rule of law in Hungary and, particularly Poland.

Ireland's central role in this comes from a case that has come before the Irish High Court. Artur Celmer is wanted by the Polish authorities for trial on a number of charges including drug trafficking. An EU law called the European Arrest Warrant made the extradition of people from one member state almost automatic.

However, politics has intervened. In recent years, the Hungarian and Polish governments have been criticised for adopting increasingly illiberal policies, particularly in relation to judicial independence.

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The EU acts against Hungary

by IdiotSavant Thu Sep 13th, 2018 at 10:56:33 AM EST

Over the past few years, Hungary has been transforming itself into an authoritarian state. The government of Viktor Orbán has undermined human rights and the rule of law, attacked judicial independence, and shut down independent media. Not to mention being virulently Islamophobic. This is all a violation of European democratic norms, and its finally grown too much for the EU, which has voted to pursue disciplinary action against them:

Front paged by Frank Schnittger

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Swedish elections today

by fjallstrom Sat Sep 8th, 2018 at 09:58:27 PM EST

Sweden goes to the polls today. With low unemployment, sinking murder rates and improving school results, if you believe statistics. However, a large portion of population, media and foreign media treats statistics as a foul conspiracy and is intending to make it about how immigration ruined Sweden.

frontpaged - Bjinse

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Theresa May: Dead Women Walking?

by Frank Schnittger Tue Sep 4th, 2018 at 08:37:35 PM EST

Nothing undermines a leader more than having important members of their own side align themselves with the opposition: First Donald Trump rather pointedly remarked that Boris Johnson would make a great Prime Minister. Then Boris Johnson chips in that Theresa May's Chequers proposals represent the white flag of surrender.  Now Rees-Mogg praises Barnier for his charm and remarked that Barnier and Brexiteers are agreed that Theresa May's Chequers proposals are "absolute rubbish.".

How is the poor woman supposed to conduct a negotiation when her own side give such aid and comfort to the enemy? In a normal democracy, Johnson and Rees-Mogg would be excoriated for betraying their own side. But it seems anything goes when it comes to attacking Theresa May. She is the fall girl for a negotiation they are determined to see fail.

Their only problem is how to prevent her from calling a general election if her putative "deal" is voted down in the Commons: A General Election that would quite possibly usher in Jeremy Corbyn into No. 10. So the trick is to undermine her sufficiently to cause her to resign the leadership without going to the Country first. She must not be allowed to clinch a deal on which she could then launch a campaign.

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Can a no deal Brexit be a good thing?

by Frank Schnittger Sun Sep 2nd, 2018 at 09:29:27 PM EST

Both sides in the Brexit negotiations have been hyping the risk of a no deal Brexit and becoming more explicit in discussing the economic damage it will do. This is to be expected  in the run up to the end of the negotiations, if only to soften up opponents of a deal.

"There is no alternative", Mrs. May can be expected to say if and when negotiators finally come to a deal: The economic consequences of no deal are too awful to contemplate, a point made clear by the publication of the first of 84 studies on the economic impact of a no deal Brexit.

All of this may very well be true, particularly in the short term. But are there longer term benefits to a no deal Brexit than can overcome any short term disadvantages? This is certainly the theory which arch-Brexiteers cling to when opposing the compromises any deal would entail.

They too can be suspected of tactical maneuvering, both to stiffen the resolve of British negotiators to hold out for a better deal, and to absolve themselves of any responsibility when any final, messy, compromise deal is done.

But let us take their objections at face value, for the moment, and examine their claim that a sovereign UK, free of any entanglement with the EU, could be much more successful, economically and politically, on the world stage.

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News and Views

 10 - 16 December 2018

by Bjinse - Dec 11, 54 comments

Your take on this week's news

 3 - 9 December 2018

by Bjinse - Dec 3, 96 comments

Your take on this week's news

 December Open Thread

by Bjinse - Dec 3, 21 comments

The main reason December is so jolly is because Santa knows where all the bad threads live

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by Bjinse - Nov 6, 68 comments

Days decrease, and autumn grows, threads in everything

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