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Brexit (updated)
by Christian Heinze, 4th of July, 2017.


The resolutions adopted by the English people in June 2016 and by the English Parliament in March 2017 on England leaving the EU provide little information on reasons or objectives that should govern the English Brexit-policy. Such guidelines can however be taken from the "Bloomberg-Speech" held in 2013 by the then Prime- Minster David Cameron criticising over-regulation, over-institutionalisation, and a lack of flexibility, democratic legitimacy and competitiveness of the EU, because this criticism constituted the motive for the later referendum-initiative of the English government, thus describing broadly the subject matter of the referendum itself. In parliament, the referendum and the subsequent resolutions of parliament were preceded by rather general discussions only. More concrete became Prime-Minister Theresa May in her speech held om 17th January 2017 after the decision for Brexit had been formally notificied. The Prime Minister underlined that English control of the number of people coming from Europe to England and free trade with European and other markets continued as goals to be achieved by Brexit. Her government worked on a list of EU laws to be kept in force in England. The stringent requirement of migration control that derives from the already existing extraordinary burden on the homogeneity of English society through citizens with migration background collides with a narrow interpretation of the principles of freedom of movement and establishment of the EU (Art. 45 et seq. AEUV). The other complaints by England are basically justified through the unrealistic politics of the EU simulating a Federal State but incompatible with the unalienable core elements of statehood of its member states as well as through broad violations of the principle that EU-rules shall apply only to the extent to which their objectives cannot be achieved on the national level (so called principle of subsidiarity). Therefore, Brexit should remind all other member states of the urgent necessity of adopting a route out of the dead alley into which the EU has drifted owing to the mistakes mentioned, by initiating a reform of its constitution and legal regime. This is of particular importance for Germany whose immigration-policy not only added to the English problems but also endangers seriously its own stability. (Cf. the author's essays on "Brexit" - https://pro-re-publica.de/Brexit.php - and "Krise Europas als Krise der Staatlichkeit, der Wirtschaft und der Gesellschaft" - https://pro-re-publica.de/Krise.php). Since the declaration of termination of English membership, interest focusses on the consequences of Brexit. England will strive to form them according to its motives and goals and the EU should strive to form them according to the interest of its remaining member states and to the ideal of European unification.

However, beyond the indications mentioned, no substantial discussion has developed concerning the consequences of termination of membership prior to the beginning of negotiations between the EU and England on 19th June, 2017. It is clear that regulations attaching legal consequences to English membership will not be applicable after that termination will have come into effect. This applies mainly to regulations that attach legal consequences to economic traffic crossing the borders of EU member countries. Other legal EU-regulations transformed into English law or in force in the other member countries are subject to the discretion of England or the EU respectively to keep them in force, to alter them or to terminate their validity. Furthermore, England as well as the EU are empowered to order, as concerns future applicability within their territorial jurisdiction, regulations that have previously attached consequences to English membership, to continue in operation without depending on that membership. Until recently there was hardly any mention in England that world-wide re-negotiation of all relationships of international economic exchange after waiving all obligations and liberties involved with the acquis communautaire could be in the English interest, and until this day no detailed survey exists from which such an interest would derive. However, massive English interests are vested in their continuation. Quite to the contrary runs paragraph 6 of the regulation made on 22nd May 2017 by the Council of Governments of the Member States of the EU which is competent to conclude a termination agreement with England. According to this rule, the agreement is supposed to stipulate that the complete body of primary and subsidiary law as well as the international agreements of the Union shall cease to apply to the United Kingdom" with the coming into force of the agreement of termination. This wording appears astonishing in substance and legally enigmatic. This is because with respect to the EU as well, no detailed survey exists concerning advantages that could derive from such a crash-course, while obviously massive interests of the EU exist in the continuation of the economic relationships that it has developed with England up to date. And it can hardly be imagined that England would commit itself to repeal all of its EU-law.

The Council regulation of 22nd May also contains extensive designs for contents of an agreement of termination that the EU would aspire, but few indications of possible conformity or even compatibility with English interests. This applies in particular to the hints contained in section III 2 of the regulation with reference to English financial obligations or to financial agreeements to become effective or to be concluded on the occasion of the English departure. According to colleteral outings of EU circles, the obligations are supposed to amount to arount 100 bn Euro , while the legal ground for the claim is still under research. This procedure is remarkable in view of the good custom in raising seriously strong and most probably disputed demands between partners and even between equal foes to give adequate reasons. Astonishnig as well are the wishes of the council made appearant by the regulation concerning the continued competence of organs of the EU and particularly of the European Court of Justice to deal with English matters after the coming into force of the declaration of termination.

In a first response, the English negotiator unexpectedly joined the crash-course of the EU. England should become free to autonomously renegotiate the conditions of its international economic traffic. This far reaching demand which fundamentally contradicts the government pronouncement of January, 2017, surprises with regard to the lack of even a chance for a fairly thorough time-consuming investigation of its massive consequences. The agreement of the negotiators surprises also because the body of regulations to be given up has obviously met the interests of both England and of the EU to a such an extent that without the European migration misery and the broad violation by the EU of the principle of subsidiarity the claim for Brexit would certainly not have been raised and that the whole of the rest of Europe has so vehemently defied this claim. The lacking rationality of the accord gives cause to suspect that it is based on rather tactical calculations. The suspicion is enforced by that strong emotionality with which Brexit is being discussed particularly on the side of the rest of Europe. The most alarming aspect of the common attitude consists, however, in their disregard for basic requirements of European unification the necessity of which continues to exist beyond Brexit and for the urgent interest in the inclusion of England. Independently of the actual phase of development and of the state of international relationsships, such requirements exist in reasonable efforts for friendship, tolerance and mutual help in overcoming difficulties encountered by all European peoples and states. This disregard is accentuated by the obviously unacceptable and indeed irrational claims raised by the EU as resulting from the termination of membership.

How then, under these circumstances, would the Brexit process be expected to go on ? As concerns the future policy of the English government, the "Queen's Speech" of 21st June, 2017, together with the subsequent discussion in parliament is significant. This is the constitutional consequence of the re-election of the English parliament of 8th June, 2017, which was induced by prime minister May, and in which the ruling party had unexpectedly lost its majority. The Queen's Speech has not adopted the basic guidelines of January, 2017, for the Brexit-negotiations. Although the loss of seats in parliament by the ruling party and the increase of influence of the Labour party is not due to disputes over the English Brexit policy but to battles about social redistribution apart from Brexit, a turnabout took place within the ruling party concerning the attitude adopted by the negotiator that was less likely due to substantial considerations than to discontent with the election disaster attributed to Theresa May. As a result of the turnabout, the parts of the Queen's speech related to Brexit, while refraining from defining the attitude of the negotiator, did not adopt the government guidelines of 19th January, 2017, but left open the goals of negotiations with reference to English foreign economic relationships.

It appears from this development that the English internal dispute and decisions concerning concrete consequences and objectives of Brexit are still pending. As England will be protected through Brexit against communication of the migration desaster and against unacceptable regulations by the EU-burocracy, contentment with the greater part of the status quo ante should result, if reason prevails, in the English people amongst itself and with the EU agreeing on far reaching retention of the previous European economic relations, and in surrendering the wishful dream of some individual and particular advantages to be afforded by extra-european arrangements. A return of the rule of reason would convey hope that the prevailing necessity of European unification would induce reflection on the inrerest in maximal preservation of the previous relationship with England. Should this reflection not materialize before the coming into effect of Brexit in March 2019, relevant agreements will remain possible even after that point. Viability of such a development is confirmed by a press item that was overlooked because it did not fit into the continental mood and that therefore failed to be widely spread: The Daily Telegraph reported on 16th November, 2016, a proposition of the German government to the effect that "British full control of its borders may be compatible with Britain retaining access to the single market". Claims raised these days by the Labour party during the parliamentary debate of the Queen's speech for far reaching preservation of English access to the European Common Market and to the European Customs Union point in the same direction.

Unfortunately little hope exists that failures in the development of the EU that have become obvious within and without the Brexit connection may result in an early reform of the EU that would enable England to remain in or to reenter the union. Without a reform the member countries will, even regardless of agreements with England, find themselves compelled to resolve among themselves which parts of the founding treaty of the EU will, as a consequence of England leaving the Union, loose ther validity or acceptability, and which changes of the constitution of the EU will therefore become necessary and acceptable for the remaining countries. This refers primarily to the prescribed weighing of votes of the member countries that applies in the making of the diverse legal acts of the Union, as this weighing looses its basic justification as a result of the termination of Englisch membership. With or without a resolution of this problem, the English exit shall result in an increase of the conflict of sufficient or insufficient competitiveness existing between member countries of the EU. Conditions shall worsen for the test of endurance towards which the EU is drifting. Preserving the fruits of the infinite efforts spent during the past half century on the successful establishment of the European Economic Community, that has so greatly enhanced the welfare particularly of the less productive member countries, shall be made considerably more difficult.


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