Radar - April 2020 – 6 / 5 观点
We've just written about the latest political developments in the Brexit saga and what may happen over the next few months, on our tech and media microsite, Download (read it quickly before it goes out of date!). Over the last year though, Radar has focused on some of the concrete legal and commercial developments, rather than on the political ones.
A major development was the passing of the European Union Withdrawal Act 2018, (Act) which received Royal Assent on 26 June 2018. Some provisions have come into force, others will be brought in by statutory instrument. The Act:
The Withdrawal Act is not to be confused with the Withdrawal Agreement (the agreement with the EU under which the UK would exit the EU). It deals with purely internal matters. It also commits the UK to an exit date which means that any change to that (for example, due to an extension of Article 50), would require another Act of Parliament.
While a transition period has been provisionally agreed, it is dependent on the UK and the EU reaching agreement on withdrawal and Parliament approving the deal. If we crash out of the EU on 29 March without a deal on either exit or our future trading relationship, many UK businesses will be in uncharted and turbulent waters. Opinions differ as to how serious the ramifications may be, but there are very few who think this is a desirable outcome.
In an attempt to help prepare for the eventuality of a 'no deal' Brexit, the government has published a series of technical notices, together with an overarching framework notice. The notices set out the government's views of what will happen in specific areas and provide some advice. We covered the notices most relevant to commercial tech and data in September and October, but our overall view is that they are not particularly helpful to businesses struggling to understand what to do in the event of no deal. Most of them do little more than restate the law as it will stand, although there are a few nuggets of useful information here and there. The majority are only a couple of pages long and half of that space is taken up by the government's assurances that it will get a deal. If a notice touches on an area which impacts you then it is worth reading but is unlikely to prove enlightening.
The CJEU ruled this month that the UK may withdraw Article 50 notification unilaterally at any time before a withdrawal agreement has entered into force, or before the two year notification period (including any extension period) has expired. If notification is withdrawn, the UK will remain in the EU under unchanged terms and conditions.
The reasoning is as follows:
The decision follows the reasoning of the Advocate General who argued that the requirement that a Member State would need to follow constitutional process in order to withdraw notification was a sufficiently high deterrent against tactical revocations by Member States to try and improve their terms of membership. In the UK, as submission of Article 50 required an Act of Parliament (in accordance with the ruling in Miller v Santos), an Act of Parliament would be needed to withdraw notification – not necessarily a terribly difficult hurdle to meet.
This decision does significantly change the balance of power under Article 50. The position under Article 50 is that there needs to be unanimous agreement among the Member States to extend an Article 50 notification. Previously, this meant that once Article 50 notification had been submitted, any other Member State could ensure that the submitting State fell out of the EU on expiry of the initial two year period by vetoing an extension of Article 50, thereby putting the balance of power completely in the hands of the European Council. Ironically, this decision protects the sovereignty of a withdrawing Member States.