EU Position Papers | 25 comments (25 topical, 0 editorial, 0 hidden)

Does European Law Override National Law?

Yes it does.
Is this stated in the Lisbon Treaty? Yes
Is this anything new? No.

[Did] the UK accept this principle?

Yes, and it has done since 1972, when Parliament passed the European Communities Act. Since then, if there has been a conflict between national law and European law, the UK courts have to give priority to European law.

What happens if they don´t?

If a government does break this fundamental obligation, then they can be taken to court and fined (sometimes very heavily!)
To finish up, and just to show you that nothing actually changes in politics, here is a quote made by Lord Denning in 1979.
"If the time should come when Parliament deliberately passes an Act with the intention of repudiating the Treaty, or any provision in it, or intentionally of acting inconsistently with it and says so in express terms then I should have thought that it would be the duty of our courts to follow the statute of our Parliament. I do not however envisage any such situation... Unless there is such an intentional and express repudiation of the Treaty, it is our duty to give priority to the Treaty."
The adoption by Parliament of a law repudiating a Treaty would, of course, put the UK in breach of its fundamental obligations under European law.

It may be prudent, so forewarned, to review establishing laws cited in "Position paper transmitted to the EU27: essential principles on the financial settlement (pdf, 24 May 2017)

Always read the footnotes, the end notes, and appendices.

Diversity is the key to economic and political evolution.

by Cat on Tue Aug 22nd, 2017 at 08:24:36 PM EST

No deal is better than a bad deal (4.00 / 2)

Am I correct in concluding that your essential thesis is that EU and UK negotiators are essentially talking past each other with the UK side seeking to engage in all sorts of issues not included in the agreed timetable for discussion at this stage in the process? In other words the UK is trying to win a PR battle to steam roll the EU into engaging in all sorts of issues without regard to the process both sides agreed should form the basis for the negotiations?

My own sense has been that the UK is not so much trying to secure a good "red, white and blue" Brexit deal, as trying to ensure the EU side is blamed for a failure of those negotiations to produce any sort of substantial Brexit deal. Theresa May's "No deal is better than a bad deal" is becoming not only a self-fulfilling prophecy, but actual UK policy. It is like a naughty child trying to blame their parents for all matter of wrongs to justify their running away rather than trying to sort out the issues in dispute.

Index of Frank's Diaries

by Frank Schnittger (mail Frankschnittger at hot male dotty communists) on Thu Aug 24th, 2017 at 10:36:19 AM EST

Re: No deal is better than a bad deal (none / 1)

You're probably right but I think they want to shift the blame on to the EU simply to cover up for their own colossal incompetence.

Of course, it will all come out in the inquries to follow, their ability to blame the EU for the mess in which the UK finds itself will diminish rapidly. I doubt that the Mail or the Sun will care much as their ownerships are tax exiles and the workforce are chosen for their sneery disdain. But other papers will probably find it difficult to sustain their position, the Telegraph particularly.

I imagine 5 years past leaving, the mood in the country will be quite bloody.

keep to the Fen Causeway

by Helen (lareinagal at yahoo dot co dot uk) on Thu Aug 24th, 2017 at 02:21:43 PM EST
[ Parent ]

Re: EU Position Papers (none / 1)

My purpose in assembling this brief was to lo locate documents informing EU gov't. disposition of the withdrawal action by the gov't of the UK, in accord with the several treaties, or laws, binding the parties. With the exception of one or two editorial remarks, my post reproduces directions published by europeanlawmonitor.org. That facility is an organ of the EC.

I felt compelled to do so, because none had been published by another eurotrib subscriber, although an inordinate amount of speculation has been devoted to adversity specific to Ireland's marketing position within the EU and ethical controversies within the ruling party of the UK gov't.

The parameters of such discourse on all matters pursuant to a so-called orderly termination of A50 action appeared to me deficient, or antithetical to the spirit of negotiated relief for all parties --and stakeholders [!]--concerned. I had expected that eurotrib readers would investigate additional information about terms of that "social contract", the EU, and report coincidental opinions.

Rule of law, not men, and all that.

Diversity is the key to economic and political evolution.

by Cat on Thu Aug 24th, 2017 at 02:17:12 PM EST

Re: EU Position Papers (4.00 / 2)

Ah yes, but laws change. I have never been in doubt that, under its current leadership, the UK would secure the worst imaginable form of brexit, "no deal", which would cast us into almot instant penury.

At which point most of the tory front bench will simply decamp to enjoy their ill-gotten gains in the second homes in Florida or France.

They are only intersted in profit. The state of the UK will not matter to them in the slightest, their view being "turn the lights off and shut the door behind you" as they leave.

keep to the Fen Causeway

by Helen (lareinagal at yahoo dot co dot uk) on Thu Aug 24th, 2017 at 02:25:56 PM EST
[ Parent ]

"form of brexit" (none / 1)

I can understand your apprehensions. These are reasonable to the extent that anyone is able or willing to comprehend the procedural rules advanced by the EU, rather than the gov't of UK. 29 Mar 2019, the withdrawal date, is not a terminal to me though. It is the end of the old trade union; it is the beginning of the trade relationship the UK gov't. indeed seeks.

Disposing of old obligations before establishing new ones is "fitting and proper". The many digits given to a "future relationships" are wasted now, disingenuous on its face and possibly malicious.

I take some consolation in my expectation that if EU's agents err in negotiation, they will do so on the side of zealous enforcement or misplaced precision of duties (as in the case of GREEK debt service), rather than the remedy.

Diversity is the key to economic and political evolution.

by Cat on Thu Aug 24th, 2017 at 03:39:31 PM EST
[ Parent ]

Re: "form of brexit" (none / 0)

As of now, the UK is out of the EU on 1/4/2019 and there is no agreement as to what happens afterwards, not even a continuation of the "blue skies" agreement under which there are no restrictions on flights between the EU and UK and vice versa.

So unless one posits the supposition that the adults will take over the discussions at some stage, there will be no flights, and possibly no trade between the EU and UK from that date as Customs officials may not have any directive as to whether they should "clear" goods in transit across the EU/UK border, and if so, what tariffs they should apply.

So we are moving towards a game of chicken, where the objective is to see who blinks first at this "appalling vista," to borrow a phrase. There are many enough economic interests amongst EU and UK industries who would welcome the exclusion of their counterparts and competitors from their respective markets.

So it is not a slam dunk, open and shut case that such a scenario will be avoided. Michael O'Leary, CEO of Ryanair, who has lately been talking a surprising amount of sense has been warning of precisely such an outcome.

Michel Barnier, chief EU negotiator, has said from the outset that there are no winners from Brexit, and that the best we can do is damage limitation. Unfortunately, there is no guarantee we will succeed in doing even that.

Index of Frank's Diaries

by Frank Schnittger (mail Frankschnittger at hot male dotty communists) on Thu Aug 24th, 2017 at 04:06:12 PM EST
[ Parent ]

"no agreement" (none / 0)

That is not a true representation of the EU declarations of existing, controlling laws or its position on retroactive application of EU law after 29 March 2014. (1) UK persons are still members of EU jurisdiction, today and until 29 March 2019. (2) UK withdrawal does not per se extinguish private party contractual obligations.

"Judicial Cooperation in Civil and Commerical Matters" (pdf, 13 July 2017)

I. General principles The following principles should apply in accordance with Union law, as interpreted by the Court of Justice of the European Union on the date of entry into force of the Withdrawal Agreement:
(1) The relevant provisions of Union law applicable on the withdrawal date on the applicable law for contractual and non-contractual obligations should continue to apply to contracts concluded before the withdrawal date, and (regarding non-contractual liability) to events which occurred before the withdrawal date. ...

&tc.

EU will enforce those claims.

The UK gov't however is unlikely to intervene in EU or EU27 venue litigation between private parties unless invited by same. (1) It's too cheap to spend. For this reason, UK.gov has invested in a PR campaign --which I'v surmise has alarmed you-- to persuade the world to select UK jurisdiction for all its legal needs, because "continuity".

Diversity is the key to economic and political evolution.

by Cat on Thu Aug 24th, 2017 at 05:15:43 PM EST
[ Parent ]

Re: "no agreement" (none / 1)

Nothing I've said above applies to private contracts between private parties. However even if an airline has a "contract" to fly from London to Berlin, it cannot do so in the absence of the "Blue Skies" agreement or some successor.

Equally customs controls are entirely oblivious to private contractual obligations, although they may use contract prices to compute tariffs due, or to ensure that the relevant parties have any required import/export licence or meet required quality certification standards.

The EU or UK can promulgate whatever regulations post Brexit they want, but neither can enforce their rulings on he other in the absence of some over-arching agreement between them as to who has jurisdiction in a particular case. Without such agreement, legitimate trade may become impossible.

The UK certainly has a strong position currently regarding the juridical resolution of disputes regarding contracts entered into by parties in various jurisdictions, but why on earth would the EU agree to post Brexit contracts disputes involving EU entities being subject to UK court determination?

The US judicial system may be able to bring the Argentinian government to book because of it's global power and reach. The UK government less so, and the EU will never be taken seriously as a global economic power sans UK if it cannot handle it's own legal "needs".

Continuity be damned. Brexit is all about rupture.

Index of Frank's Diaries

by Frank Schnittger (mail Frankschnittger at hot male dotty communists) on Thu Aug 24th, 2017 at 05:36:38 PM EST
[ Parent ]

"Blue Skies" ? (none / 0)

Is that European Common Aviation Area by another name?

Here text a/o Mar 2009, appears to amend the Act to regulate standard import values for determining the entry price of certain fruit and vegetables in accordance with EU WTO commitment

Here text a/o Oct 2008 appears to establish a number of facilities for air carriers operating between the "Contracting Parties" not least of which prohibition of discrimination between carriers. And I note with interest Articles 7 and 8 acknowledge the rights of various classes of private parties ("air carrier"), distinguished in Art. 9.

The provisions of Articles 7 and 8 shall not apply to activities which, in the territory of any Contracting Party, are connected, even occasionally, with the exercise of official authority.
2. The provisions of Articles 7 and 8 and measures taken in pursuance thereof shall not prejudice the applicability of provisions laid down by law, regulation or administrative action of the Contracting Parties regarding entry, residence and employment or providing for special treatment for foreign nationals on grounds of public policy, public security or public health.

This legislation provides benefits of EU membership.

Diversity is the key to economic and political evolution.

by Cat on Thu Aug 24th, 2017 at 06:29:44 PM EST
[ Parent ]

Re: "Blue Skies" ? (none / 1)

Alrighty then!

Let's imagine how BREXIT will affect Aer Lingus business.

No links
Aer Lingus Limited provides passenger and cargo air transportation services. The company offers its services from Ireland to the United Kingdom and other Europe, as well as to the United States. It also provides insurance claims management services. The company is based in Dublin, Ireland. Aer Lingus Limited is a subsidiary of Aer Lingus Group DAC.

The company's website says that IAG (International Airlines Group) is the parent company of Aer Lingus, British Airways, Iberia and Vueling. AG is a Spanish registered company with shares traded on the London Stock Exchange and Spanish Stock Exchanges, but the corporate head office for IAG is in London, UK.

Diversity is the key to economic and political evolution.

by Cat on Thu Aug 24th, 2017 at 06:55:55 PM EST
[ Parent ]

Re: "Blue Skies" ? (none / 0)

According to Michael O'Leary, an airline has to be majority owned by EU citizens to qualify for access under Blue Skies. As a significant part of the Ryanair shareholder base is UK based, Ryanair will fall below 50% EU ownership when Brexit happens. He is busy preparing plans to buy back British owned Ryanair shares to ensure Ryanair remains 50% EU owned.

On that logic IAG would have to divest itself of its Aer Lingus ownership (only recently acquired) if Aer Lingus is to be able to continue to fly it's Ireland UK routes. IAG CEO, David Walsh (also Irish and ex Aer Lingus) has said that with "policy support", it should be a simple enough to extend "Open Skies" to the UK post Brexit. That may well be the case, and should be an early and easily agreed part of any Brexit deal.

But if there is no Brexit deal? Why would the EU allow the UK cherry pick the things it wants whilst reneging on other obligations? O'Leary is worried it would suit Lufthansa et al just fine to have UK/EU routes shut down for a few months causing greater damage to Ryanair by comparison. It all depends on whether some adults enter the room...

Index of Frank's Diaries

by Frank Schnittger (mail Frankschnittger at hot male dotty communists) on Thu Aug 24th, 2017 at 07:05:51 PM EST
[ Parent ]

Re: "Blue Skies" ? (none / 0)

FT says O'Leary is an "outspoken critic" of Aer Lingus, too. But I don't suppose, because he's strong on unions contracts.

Open Skies is an international aviation treaty (Convention on International Civil Aviation, 1992) containing many subdivisions, or regimes, of which the US-EU agreement (2008) granting traffic control, landing rights ("freedoms") to particular commericial and military carriers operating between those states.

But I read in Torygraph that

The Open Skies agreement allows EU airlines, including those registered in the UK, to operate in each other's countries.

As if ECAA legislation (2006) has not regulated EU interstate air traffic and its internal market, e.g. transitional licenses, state monopolies (ANNEX III), and just recently, "third countries and their nationals are not eligible for majority owning or effectively controlling EU carriers" (8 June 2017) to shake those free-trade bushes.

It's clear EC Reg. 2407 can be quite the shareholder's number crunching friend, if it wants to. Congratulations, Swissair/Sabena! First to pass the test.

Mr O'Leary related to Boris? How melodramatically he warned the European Parliament's Transport and Tourism Committee "aviation cannot fall back on World Trade Organisation rules" and that the "only sensible option" was for the British government to "overturn the plebiscite and remain in the EU," or else.

Perhaps he like Walsh at IAG was lobbying for dispensation?

Diversity is the key to economic and political evolution.

by Cat on Fri Aug 25th, 2017 at 02:31:52 AM EST
[ Parent ]

Michael O'Leary: The unlikely anti-Brexiteer (4.00 / 2)

For many years, Michael O'Leary has been Ireland's answer to Donald Trump who has realised he can get more free publicity through outrageous behaviour than he can ever hope to buy with his airline's measly advertising budget. In more recent times he has finally realised that you can be cheap without having to be nasty, although that has not diminished his hostility to trade unions.

But his biggest volte face has been in relation to the EU itself. For many years the EU was deemed to be the incarnation of evil, restricting competition between airlines, airports, and ancillary services to the disadvantage of Ryanair, the lowest cost operator in the marketplace. With Brexit, he has suddenly realised (or at least publicly admitted), that without the EU there could have been no Ryanair at all, because it liberalised competition between airlines and airports within the EU.

This has enabled Ryanair to successfully undermine the "high cost" flag carriers, together with their state subsidies, and turn Ryanair into the fifth largest airline in the world, by number of passengers carried. He has revolutionised air travel to/from Ireland, which is, on average, cheaper now than it was 30 years ago, and enabled the rapid growth of the Irish tourist industry.

Brexit represents an existential threat to Ryanair's business model, which is still very heavily based on the UK. I have not seen his central contention challenged, which is that without a Brexit agreement, the UK will no longer be part of "Blue Skies", and without that UK/EU flights will simply cease, as there is no WTO like fall-back position in the event of no deal. He appears concerned that a combination of negotiating incompetence, allied to the interests of his mortal foes, the large EU flag carriers, could allow that seemingly outlandish situation persist for quite some time.

As Airlines plan and publish their schedules 6-12 months in advance, he needs a deal by mid-2018 if he is not to dramatically reduce Ryanair's exposure to the UK/EU market and cut flights to/from there on a wholesale basis and this would put huge pressure on the UK government to come to a deal. I doubt he is joking. Unlike Boris, he has a track record of following through on his threats, and in this case he may have very little option. His comments to the European Parliament were quite moderate and measured by his standards... Unlike Trump, his antics have been calculated to maximise publicity for his airline, and not simply a narcissistic conceit. He means business.

Index of Frank's Diaries

by Frank Schnittger (mail Frankschnittger at hot male dotty communists) on Fri Aug 25th, 2017 at 10:30:35 AM EST
[ Parent ]

Re: EU Position Papers (none / 1)

"an inordinate amount of speculation has been devoted to adversity specific to Ireland's marketing position within the EU"

I write within the scope of my competence and interests. If there is an inordinate amount of speculation specific to Ireland's interests, it is because that is a matter close to my heart and there is a dearth of other contributors on other topics. Issues specific to Ireland also usefully highlight the UK's complete disregard for interests other than it's own (here defined chiefly as those of the largely S. E. England based ruling elite.

My thanks for publishing this useful compendium of relevant position papers... which is deserving of a place on the front page.

Index of Frank's Diaries

by Frank Schnittger (mail Frankschnittger at hot male dotty communists) on Thu Aug 24th, 2017 at 02:54:09 PM EST
[ Parent ]

Re: EU Position Papers (4.00 / 2)

You're welcome.

Diversity is the key to economic and political evolution.

by Cat on Thu Aug 24th, 2017 at 03:40:58 PM EST
[ Parent ]

"No deal is better than a bad deal" (none / 0)

For instance, this oft repeated bromide has indicated to me a certain preference, or bias, to limit critique of secession from the EU, in general, only to purported UK gov't. interests in the "deal".

Best Alternative to No Agreement (BATNA

It is tempting to accept perversion of a (commercial) negotiation processes without examining, to begin with, agreement between the parties on its purpose. As the parties are agreed that UK withdrawal from treaties of the union is the instant purpose, what "deal" is disputed?

My understanding is, the "deal" is a euphemism for a collection of contracts between the parties which must be terminated in order to effect political and financial severance of any and all legal obligations addressed thereunder. Yet in review of the parties' records, I find scant evidence of parties' mutual dependence on those rules of socially acceptable and socially unacceptable conduct.

Which contractual obligations specifically, if any, do parties who represent some hundred millions of political constituents --and billions of "stakeholders"-- dispute?

Diversity is the key to economic and political evolution.

by Cat on Thu Aug 24th, 2017 at 03:11:01 PM EST

Re: "No deal is better than a bad deal" (none / 1)

The UK, on accession and in numerous Treaties and agreed subsidiary Commission directives thereafter, has accepted a huge number of obligations most of which it now seeks to abrogate. That is the essence of what the Brexit "deal" will be about.

However the UK also seeks to retain what it sees as the benefits of membership insofar as it it possible to do so, post Brexit. That is the essence of the Trade deal which the UK is anxious to negotiate.

The EU, for it's part, has indicated that it wishes to have the terms of the "Brexit" deal substantially agreed before it moves on to discussion the terms of any post-Brexit trade deals. The UK cannot have one without the other - it argues.

Specifically, for the EU, ending free movement of EU citizens, the jurisdiction of the ECJ, membership of the Customs Union and Single Market, the direct UK contribution to the EU budget etc. must have consequences, else why wouldn't everyone (selectively) be doing it?

The argument is essentially about what price the UK will have to pay for the benefits it wishes to retain, and failing agreement, the UK will lose all those benefits, together with the obligations it has entered into as a principle in all the treaties it is now abrogating.

Some Brexiteers argue that "no deal is better than a bad deal" means the UK should pay very little at all, on the principle that the EU needs the UK as much as vice versa. It remains to be seen whether they have over-played their hand.

Index of Frank's Diaries

by Frank Schnittger (mail Frankschnittger at hot male dotty communists) on Thu Aug 24th, 2017 at 03:47:45 PM EST
[ Parent ]

Re: EU Position Papers (none / 0)

Reflection and scenario modelling totally unknown to US citizens
White Paper on the Future of Europe (pdf)

V4 fulminations on foregone EU transfer payments and peripheral currency values
Visegrád on Juncker's White Paper: No to a multi-speed Europe: "this is where the Visegrád consensus ends."

BREXIT budget adjustment deadlines
Paris and Berlin at odds over `grand bargain' to deepen eurozone: "That way, reform ideas can be embedded in the German coalition agreement, a detailed policy blueprint for the new government that can run over 200 pages."

Backdoor eurobonds (again), tax authority, and an EU treasurer
Amid EU treaty change fever, national ministers urge caution: "it would 'only add an extra layer of complication to things '"

Diversity is the key to economic and political evolution.

by Cat on Sat Sep 9th, 2017 at 10:43:03 PM EST

Re: EU Position Papers (none / 0)

Position paper transmitted to EU27 on Customs related matters needed for an orderly withdrawal of the UK from the Union (pdf)

As of the withdrawal date, the United Kingdom will no longer be part of the customs and tax (VAT and excise) territory of the Union. Consequently movements of goods between the UK and the EU 27 will constitute third country trade. The principles outlined in this paper aim to ensure an orderly withdrawal of the United Kingdom from the Union in respect of customs related matters. [...] It is for the declarant to demonstrate the status of the goods (Union or non-Union) before the date of withdrawal and the fact that the relevant movement or entry into a customs regime was initiated before the date of withdrawal. The following general rules seek to implement that approach and should apply in accordance with Union Law, as interpreted by the Court of Justice of the European Union on the date of entry into force of the Withdrawal Agreement: ...

No wonder UK gov't hastens to enact the "Repeal" bill (12,000 EU-compliant provisions?) with the Poison Pill (Henry VII).

Retention of existing EU law
2 Saving for EU-derived domestic legislation
3 Incorporation of direct EU legislation
4 Saving for
Signaturerights etc. under section 2(1) of the ECA
5 Exceptions to savings and incorporation
6 Interpretation of retained EU law

EU's workgroup will need all of 2018 and an army to comb out the nits in it.

Diversity is the key to economic and political evolution.

by Cat on Wed Sep 13th, 2017 at 07:36:15 PM EST

Re: EU Position Papers (none / 0)

EU Withdrawal Bill: A guide to the Brexit repeal [sic] legislation

The government's White Paper says there is "no single figure" for this, but that there are believed to be 12,000 EU regulations (one type of EU law) in force, while Parliament has passed 7,900 statutory instruments implementing EU legislation and 186 acts which incorporate a degree of EU influence.

errata: 7,900 statutes + 186 statutes. My bad.

So.

How eager would the EP, EC, and Council need to be in order to accommodate an orderly UK "transition"?

Diversity is the key to economic and political evolution.

by Cat on Wed Sep 13th, 2017 at 07:43:51 PM EST
[ Parent ]

Re: EU Position Papers (none / 0)

Thread music suggestions?
All I've got it "Let It Go" or "Ain't Nobody Got Time for That"
.
.
.
Time's up!

Diversity is the key to economic and political evolution.

by Cat on Wed Sep 13th, 2017 at 07:54:38 PM EST
[ Parent ]

Re: EU Position Papers (none / 0)

Henry VII

Didn't he open up trade with France? This seems a strange choice. Maybe you meant Henry VIII? (they might have considered using Anne Boleyn laws as well, if Diana had not been in the habit of not wearing a seatbelt).

by gk (gk (gk quattro due due sette @gmail.com)) on Wed Sep 13th, 2017 at 07:53:28 PM EST
[ Parent ]

BWAH! (none / 0)

Indeed, I slipped a "I".

Diversity is the key to economic and political evolution.

by Cat on Wed Sep 13th, 2017 at 10:48:52 PM EST
[ Parent ]

posterity, "accountability", wtf studies (none / 0)

PRESIDENT JEAN-CLAUDE JUNCKER'S State of the Union Address 2017 Brussels, 13 September 2017

Diversity is the key to economic and political evolution.

by Cat on Fri Sep 22nd, 2017 at 04:05:32 PM EST

EU Position Papers | 25 comments (25 topical, 0 editorial, 0 hidden)

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