(Br)Exit from the European Union – Control, Autonomy and the Evolution of EU Law
University of Cambridge Faculty of Law Research Paper No. 13/2021
Forthcoming in Paul Craig and Gráinne de Búrca (eds.), The Evolution of EU Law, third edition (Oxford UP, 2021)
59 Pages Posted: 17 Mar 2021
Date Written: March 17, 2021
Abstract
(Br)Exit from the European Union offers a novel interpretation of the United Kingdom’s withdrawal from the European Union (EU). Rather than emphasising the rupture and the exceptionalism of ‘Brexit’, this paper argues that much can be understood about the evolution of EU law through the experience of the UK’s membership and eventual withdrawal from the EU. Part A evaluates whether the legal history of its membership – its encounter with EU rulemaking and adjudication – can explain the UK’s preference for a ‘differentiated membership’ of the EU and eventual demands for control over its own laws. Part B focuses on the Article 50 TEU withdrawal process. It underscores that compliance with ‘constitutional requirements’ throughout the Article 50 process evidences co-evolution of the EU and domestic constitutional and legal orders even up to the moment of withdrawal. Part C projects forward to the evolving future relationship. It suggests that as the UK asserts its sovereignty outside of EU legal and institutional disciplines, the EU wants protection for its own autonomy.
Keywords: Brexit, Article 50, differentiated membership, treaty amendment, constitutional requirements, Withdrawal Agreement, Political Declaration, Free Trade Agreement
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