Bye bye Theresa

[dinny_g]

End of this page, max.

[JLv3.0]

Damn. So close.

[NotoriousREV]

The big issue obviously is that the ECJ is capricious in its purposive reasoning and if it felt that a permanent backstop is in the EUs favour, may well just "interpret" it to be in accordance with the treaties (i.e. change the law).

That's quite a serious accusation of bias. Is there any evidence to suggest that is the case?

Even in textbooks my friend: https://www.bloomsburyprofessional.com/ ... 782250319/

"Only in exceptional cases which the Court perceives to go to the heart of the integration process and threaten its acquis communautaire, is the Court of Justice likely not to feel constrained by either the wording of the norms in issue or by the ordinary conventions of interpretative argumentation, and to adopt a strongly communautaire position, if need be in disregard of what the written laws says but subject to the proviso that the Court is assured of the express or tacit approval or acquiescence of national governments and courts."

Their reasoning process is something that is anaethema (or should be!) to the British judge but is something they think is legitimate - they see it as protecting the EU's interests and therefore don't consider it "bias" in that sense - though clearly it is if you're an applicant with a case against the EU!

The thing is that EU textbook writers are almost always extremely europhilic (they've dedicated their lives to the study of EU law) so you'll struggle to find them being overtly critical of the system, but this para from the same summary also gives an insight into how politicised ECJ judgments can be:

The Court's exercise of its discretion is best understood in terms of the constraints imposed by the accepted justificatory discourse and certain extra-legal steadying factors of legal reasoning, which include a range of political factors such as sensitivity to Member States' interests, political fashion and deference to the 'EU legislator'

Someone wrote it down. It must be true.

[GG.]

Go and put your tin-foil hat back on Rev.

[NotoriousREV]

I'm not the one citing a textbook and then admitting that textbook writers are biased when making my entire argument

[GG.]

So a fact being presented in a certain light makes the fact untrue does it? Ok...

If you're suggesting that the jurisprudence of the ECJ suggests a different approach to judicial decision making, feel free to offer it here.

[JLv3.0]

That's literally the exact point he was making. This is all going absolutely swimmingly.

[GG.]

Then its a nonsense point. Facts are not true or untrue depending on the point of view of the observer. This isn't quantum physics.

Of course, deflection is a lot easier than argument when you know nothing of your subject.

[Rich B]

Then its a nonsense point. Facts are not true or untrue depending on the point of view of the observer. This isn't quantum physics.

You are a total bore. FACT.

[GG.]

Not according to Rev.

Anyway you're going full Tusk - calm down.

[NotoriousREV]

Facts are not true or untrue depending on the point of view of the observer.

No, but people's experiences and opinions colour their observation and interpretation of facts. Because someone commits their opinion to paper, does not make it a fact.

[GG.]

If someone very pro-EU (i.e. the text book writer) acknowledges that ECJ judgments may be made "in disregard of what the written laws says" then that reinforces, not defeats my argument.

If you want to make an argument that that way of determining cases is fine then that of course is open to you. I do have some powerful arguments against, however. Equally, if you think that statement is untrue - now's your time to shine.

[NotoriousREV]

Are they really, really long and overly wordy?

[JLv3.0]

Oh God I hope so.

[Rich B]

[NotoriousREV]

Does anyone know any textbook writers who specialise in confirmation bias? I might have a great example for them.

[Beany]

Does anyone know any textbook writers who specialise in confirmation bias? I might have a great example for them.

I'm trying to cut back on the e-cig stuff on Facebook at least, leave me alone.

[RobYob]

Does anyone know any textbook writers who specialise in confirmation bias? I might have a great example for them.

Belief in confirmation bias would itself be a confirmation bias, no? We've hit Biaseption.

BWAAAAAARGHHHH!

[Jobbo]

Article 50 itself refers to a withdrawal agreement but as the backstop, as noted above, is not legally a withdrawal agreement but an international treaty it needs to be negotiated and concluded in accordance with Article 218(11) TFEU. This stipulates the negotiation and conclusion of said international agreement is lead by the council, not the commission, as per the last two years of negotiation with Michel Barnier. Therefore you can't ram the backstop into a withdrawal agreement as it does not follow the correct process.

[...]

As regards impact on negotiations, it has an effect in potentially two ways - TM could state this position that the backstop has been advised to her as illegal and that she therefore needs to have an exit mechanism and if the EU declines then approach the ECJ to issue a declaratory judgment on it. Option 2 would be to get comfort that if the backstop went on for any significant period it could be challenged in court and therefore we should just get on an sign up to it. The big issue obviously is that the ECJ is capricious in its purposive reasoning and if it felt that a permanent backstop is in the EUs favour, may well just "interpret" it to be in accordance with the treaties (i.e. change the law).

HSF's article is not unequivocal about the unlawfulness of the backstop. It suggests that the same provision but terminable would be acceptable. I fail to see that this alters the nature of the backstop substantially enough to turn it from unlawful to acceptable. It is a term of the withdrawal agreement only, designed to deal with one very specific issue; it is not, to any eyes, the basis of a long term relationship.

As to the other paragraph I have quoted, there isn't really time for the CJEU to give a judgment on the point before 29 March now, but there is no reference to them currently and yesterday there was a suggestion that Parliament here would seek an 8 week delay to the exit date, so it is not impossible. Based on May's discussions today, though, there's nothing to seek a reference on; she isn't challenging the legality of the backstop.

[GG.]

I think their argument is that anything which lacks a termination provision inherently can't be "transitional" and therefore not a withdrawal agreement. When I said "backstop" I meant backstop in its current form (which they are pretty clear in saying is non-compliant). I agree in a way though that just the ability to terminate may not do it - if you were being strict about it you'd have to say it terminated after a set period (and again, the longer that period is the more like an international agreement or treaty it looks).

As I said before (leaving all the silly interjections aside) you could never be unequivocal about it because the CJEU may just turn around and say "necessary for stability of the EU therefore in compliance with the treaty". There's always the possibility of coming a cropper if you rely on the CJEU to effectively rule to the detriment of the EU.

ETA: Varoufakis firmly hitting the nail on the head with his tweet to Tusk:

Probably very similar to the place reserved for those who designed a monetary union without a proper banking union and, once the banking crisis hit, transferred cynically the bankers' gigantic losses onto the shoulders of the weakest taxpayers.