Ad Kalendas Graecas? The Future of Brexit and Its Consequences for the EU
Federico Fabbrini (DCU Brexit Institute)
On 10 April 2019 the European Council unanimously accepted a second request by Prime Minister Theresa May to further postpone the withdrawal date of the United Kingdom (UK) from the European Union (EU). Almost three years since the 2016 referendum, and over two years after the formal notification by the UK of its intention to leave the EU pursuant to Article 50 TEU, Brexit has not yet happened. And questions remain as to whether it will happen any time soon. As the European Council decided at the special summit, the date for withdrawal is now postponed to 31 October 2019. And while a measure of flexibility has been foreseen – which would allow the UK to withdraw before October if both sides approve the withdrawal agreement earlier – the now ever more likely prospect of British participation in the 2019 European Parliament (EP) elections in May suggests that the UK will remained tied to the EU for at least another while. Indeed, the European Council stipulated that unless the UK has approved the withdrawal agreement by 22 May, it must take part in EP elections or else it will leave the bloc without a deal on 1 June.
The ongoing permanence of the UK within the EU provides important lessons on the nature of the European integration project – but also raises new challenges for its future.
On the one hand, the obvious difficulties that the UK is facing in leaving the EU are a confirmation, a contrario, of the resilience of the European idea. The fact that the UK Government and Parliament are unable to properly follow through on the outcome of the June 2016 referendum is a blow to the Eurosceptic dream of a promised Jerusalem outside the EU. Indeed, the two subsequent requests from Prime Minister May to postpone the exit date demonstrate the impossibility of finding a meaningful way to take back control from the EU without destroying a state’s economy and unsettling its politics. This ironically strengthens the case in favor of Europe, by revealing that the project of creating an “ever closer Union among the peoples of Europe” is indeed meant to be irreversible – a feature well reflected in the fact that the EU treaties are concluded for an indefinite duration.
On the other hand, however, the inability of the UK to detach itself from the EU also raises important challenges for the future of Europe. After all, the EU is not a prison, and the codification of Article 50 TEU at the time of the Constitutional Convention was meant to reaffirm the high principle that the EU is a free Union of free states – all of which have willingly decided to share their sovereignty on a reciprocal basis to federate into a supranational organization. If a state were to feel caged into the EU against its will, this may challenge the constitutional compact on which the Union is based, and such state could become a nuisance in the functioning of the EU itself. In fact, this risk quite quickly revealed itself in Brexit, as immediately following the second UK request for extending Article 50, leading Euroskeptic politicians called for the UK to become “as difficult as possible”, using the veto and other tricks to obstruct and oppose the EU from within. In fact, it is precisely to avert this threat that the European Council – besides accepting the second extension – also requested the UK government to act in a constructive and responsible manner throughout the extension period in compliance with the Treaty-based duty of sincere cooperation.
Yet, it is not clear this can be expected, and much less enforced – which raises the important question of whether the EU should in fact start thinking about more structural institutional solutions to accommodate different tiers of membership within its ranks. In fact, if 2 years of Brexit talks have proved the difficulties of leaving the EU, the 2016 Brexit referendum unearthed uneasiness with the EU that the Union would ignore at its own peril. And if the UK is due to remain in the EU for a while more, with Brexit postponed ad Kalendas Graecas, it is certainly in the EU’s interest to reorganize its constitutional setup in such a way that states who are laggards in the process of integration do not interfere with the ambitions of others. In other words, the EU itself should promote constitutionally entrenched mechanisms of institutional differentiation where states with diverse visions of integration can coexist without undermining each other. The European Council conclusions of 11 April 2019 seem to potentially point in this direction when they stress that “the 27 Member States and the Commission, where appropriate together with the other institutions … of the Union, will continue to meet separately at all levels to discuss matters related to the [future] situation” (§8).
However, leaving aside the question whether the future of the EU can really be at 27, it seems clear that a simple paragraph in a European Council conclusion won’t suffice. If Brexit is not going to happen anytime soon, the EU must inevitably engage in a new round of constitutional engineering to make sure that the ongoing EU membership of the UK doesn’t turn into a boomerang. If the second Brexit postponement is a boost for the irreversibility of the project of European integration, it is also a challenge for a free Union of free states. In this context, a treaty reform to differentiate tiers of membership and levels of commitments between member states must emerge as an indispensable way forward.
Federico Fabbrini is Full Professor of EU Law at Dublin City University (DCU) and Founding Director of the DCU Brexit Institute.