“And as the fog gets clearer…“ – May on Brexit
In her long-awaited speech on what Brexit actually means for the future application of the acquis communautaire in the United Kingdom, British Prime Minister Theresa May, on 17 January, 2017, stressed that the objective of legal certainty is crucial. She further elaborated:
“We will provide certainty wherever we can. We are about to enter a negotiation. That means there will be give and take. There will have to be compromises. It will require imagination on both sides. And not everybody will be able to know everything at every stage. But I recognise how important it is to provide business, the public sector, and everybody with as much certainty as possible as we move through the process. So where we can offer that certainty, we will do so. […] And it is why, as we repeal the European Communities Act, we will convert the ‘acquis’ – the body of existing EU law – into British law. This will give the country maximum certainty as we leave the EU. The same rules and laws will apply on the day after Brexit as they did before. And it will be for the British Parliament to decide on any changes to that law after full scrutiny and proper Parliamentary debate.”
At the same time, May promised that “we will take back control of our laws and bring an end to the jurisdiction of the European Court of Justice in Britain.”
(The full text of the speech is available here.)
This unilateral approach seems to imply that the EU Regulations on Private International Law shall apply as part of the anglicized “acquis” even after the Brexit becomes effective. This would be rather easy to achieve for the Rome I Regulation. In addition, a British version of Rome II could replace the Private International Law (Miscellaneous Provisions) Act of 1995, except for defamation cases and other exemptions from Rome II’s scope. At the end of the day, nothing would change very much for choice of law in British courts, apart from the fact that the Court of Justice of the European Union could no longer rule on British requests for a preliminary reference. Transplanting Brussels Ibis and other EU procedural instruments into autonomous British law would be more difficult, however. Of course, the UK is free to unilaterally extend the liberal Brussels regime on recognition and enforcement to judgments passed by continental courts even after Brexit. It is hard to imagine, though, that the remaining EU Member States would voluntarily reciprocate this favour by treating the UK as a de facto Member State of the Brussels Ibis Regulation. Merely applying the same procedural rules in substance would not suffice for remaining in the Brussels Ibis camp if the UK, at the same time, rejects the jurisdiction of the CJEU (which it will certainly do, according to May). Thus, the only viable solution to preserve the procedural acquis seems to consist in the UK either becoming a Member State of the Lugano Convention of 2007 or in concluding a special parallel agreement similar to that already existing between Denmark and the EU (minus the possibility of a preliminary reference, of course). Since only the latter option would allow British courts to apply the innovations brought by the Brussels I recast compared with the former Brussels and the current Lugano regime, it should clearly be the preferred strategy from the UK point of view – but it cannot be achieved unilaterally by the British legislature.
I’m curious to see how Recital 3 of the Brussels Ibis Regulation will be implemented by the domestic legislation of England & Wales. But without the Recital, the normative text will not longer correspond to the spirit (and the obectives) of the Regulation (and the same applies to all other EU instruments, too).
European private and procedural international law is based on its intrinsic links with the general law of the Union: especially the fundamental freedoms of the Internal Market and fundamental rights of the CFR. They form the backbone of the whole area of law. Against this backdrop, it simply appears as wishful thinking that “indirect cherry picking” by copying parts of EU law by parallel domestic law will be the solution accepted by the rest of Europe.
Hard Brexit means exit – from European private international and procedural law being part of general European Union law which is – by the way – based on non-discrimination by nationality. And the case-law of the ECJ has been been beneficial to the modernization of English private international and procedural law, too.
The whole current development is a pity (no, a nightmare) – but populist politicians in power are obviously unable to realize the adverse consequences of their half reflected actions.