+++ Brexit +++
Federico Fabbrini is Full Professor of European law at the School of Law & Government of the Dublin City University and the Principal of the Brexit Institute. He holds a PhD in Law from the European University Institute and previously had academic positions in the Netherlands and Denmark. He regularly engages with EU institutions and national governments and is the author, among others of “Economic Governance in Europe” (Oxford University Press 2016) as well as the editor of “The Law & Politics of Brexit” (Oxford University Press 2017). http://dcubrexitinstitute.eu/people/federico-fabbrini/
Photo:© AGENZIA 3P
ing one of the few military powers in Europe, it has hardly ever deployed its resources for the benefit of EU-led operations. So it is no small irony that when the UK is leaving – and when the EU, without the UK veto is finally pushing forward with the Permanent Structured Cooperation in defence (PESCO) – the UK wants to rejoin. A second paradox, however, is the fact that – as the openness of the EU institutions suggest – a special UK-EU partnership in the field of security and defence may well be reached. In fact, it actually seems more likely that the EU and the UK will be able to reach a deal in the field of security and defence – where interests in London and Brussels look deeply converging – rather than on trade.7 This is quite surprising considering that defence is usually regarded as an area of ‘high politics’ – where agreement is more difficult than in trade, which is ‘low politics’.
ECJ jurisdiction: Sanctions’ policy constitutes a perfect example of this. Targeted sanctions against individuals and foreign governments has become a primary tool of EU foreign and security policy in the last few decades, and the UK has been a prominent player in this field, with UK evidence underpinning on average roughly 50% of EU sanctions. At the same time, the Lisbon Treaty has now codified in Article 275 TFEU the ECJ jurisdiction regarding the review of the legality of restrictive measures against natural and legal persons.9 Even in the field of CFSP and CSDP, therefore, the European Court of Justice (ECJ) has a prominent role – which seems to clash with the proclaimed intention of the UK government to end the jurisdiction of the ECJ after Brexit. In conclusion, while it appears that both the UK and the EU are willing to work on a future external security and defence partnership, whether they are able to do so remains to be seen.
Legal constraints and challenges The renewed interest of the EU and the UK in the field of external security and defence is welcome, particularly considering that the UK is one of the few European states meeting NATO spending targets.8 However, this should not obfuscate the challenges that the development of a special partnership in these fields will pose. In fact, from a legal viewpoint, it is clear that the deeper the partnership, the greater the requirements for the UK to comply with the EU constitutional rules will be. EU legal constraints: While simple dialogue and ad hoc cooperation between the EU and the UK would certainly be feasible, any effort to deepen it would meet EU legal constraints and inevitably bring up the interplay with the framework for future EU-UK relations applicable outside the field of CFSP and CSDP – including the contentious issues of internal market, procurement and competition rules, human rights protection and broader mechanisms for enforcement and dispute resolution.
1 See further Federico Fabbrini, “Institutional Consequences of a ‘Hard Brexit’”, study commissioned by the European Parliament Constitutional Affairs Committee, May 2018. 2 Theresa May, Speech at the Munich Security Conference, 17 February 2018. 3 UK Government, Framework for the UK-EU Security Partnership, ppt presentation, May 2018. 4 European Parliament resolution of 14 March 2018 on the framework of the future EU-UK relations P8_TA(2018)69. 5 European Council Guidelines, 23 March 2018, EUCO XT 20001/18, §13. ii). 6 Luigi Lonardo, “EU Common Foreign and Security Policy After Brexit”, DCU Brexit Institute working paper No. 4/2018. 7 Joris Larik, “The New Transatlantic Trigonometry”, DCU Brexit Institute working paper No. 3/2018 paper No. 2/2018. 8 See Federico Fabbrini, “Do NATO Obligations Trump European Budgetary Constraints”, DCU Brexit Institute working paper No. 2/2018. 9 See further Federico Fabbrini & Vicky Jackson (eds.), Constitutionalism Across Borders in the Struggle Against Terrorism (Elgar 2016)
11
