OV9

I came here to post about Tusk as well . Must be getting tired of banging his head off a wall.

He's already been deliberately misquoted by Brexiteers trying to start shit.



Which is silly, because Tusk is fucking right.

ZedLeg wrote: Wed Feb 06, 2019 2:44 pm I came here to post about Tusk as well . Must be getting tired of banging his head off a wall.

I doubt it. He's getting paid a metric £fvckton to bang his head on that wall.

Just come across this bulletin by Herbies - surprised more hasn't been made of this:

https://hsfnotes.com/brexit/2019/02/04/ ... arliament/

Effectively, the backstop in its current form is most likely illegal.

GG. wrote: Wed Feb 06, 2019 6:33 pm Just come across this bulletin by Herbies - surprised more hasn't been made of this:

https://hsfnotes.com/brexit/2019/02/04/ ... arliament/

Effectively, the backstop in its current form is most likely illegal.

is this news? Isn’t that the whole point of this whole discussion that none of the proposed answers can actually work without changing law?

How’s Brexit going?

Richard wrote: Wed Feb 06, 2019 9:57 pm How’s Brexit going?

Exactly as I expected.

Rich B wrote: Wed Feb 06, 2019 6:48 pm

GG. wrote: Wed Feb 06, 2019 6:33 pm Just come across this bulletin by Herbies - surprised more hasn't been made of this:

https://hsfnotes.com/brexit/2019/02/04/ ... arliament/

Effectively, the backstop in its current form is most likely illegal.

is this news? Isn’t that the whole point of this whole discussion that none of the proposed answers can actually work without changing law?

It most definitely is news - there’s a difference between passing laws to effect or facilitate leaving and this legal opinion which is saying that the very thing being proposed (the backstop within the withdrawal agreement) is inherently illegal!

And more to the point, it says to be legal, it as a minimum needs an ability to exit on notice - ie exactly what we’re asking for.

So not only is the exit from the backstop logical and reasonable it is also legally necessary.

Yet this is as you say, an opinion. It’s just more mud in the already muddy waters.

One of the authors headed up a legal department at the Commission until two years ago and as noted in the article, the attorney general did actually say the same thing (less succinctly) in his legal advice to HMG.

Pretty persuasive overall and like the article 50 revocation point, could be put to the CJEU.

It is interesting that HSF produce such academic treatises on Brexit.

I disagree with their conclusion, whether or not they are correct that the backstop is unlawful under EU law. The reason for that is simple; Art.50 doesn’t require any agreement to be entered into in order to leave. On 29 March, we leave by automatic operation of law, whether or not any agreement is in place.

Negotiation of the withdrawal agreement, and its form, is not prescribed in Art.50. There is no bar to the parties agreeing whatever they like; it’s a new agreement.

If there were a genuine legal point in issue, we would not have a right to enforce it because we would have ceded from the jurisdiction of the EU.

So in practice the point made is futile. It doesn’t look like it’ll have any bearing on negotiations and doesn’t give a any practical rights to enforce.

Jobbo wrote: Thu Feb 07, 2019 9:07 am It is interesting that HSF produce such academic treatises on Brexit.

I disagree with their conclusion, whether or not they are correct that the backstop is unlawful under EU law. The reason for that is simple; Art.50 doesn’t require any agreement to be entered into in order to leave. On 29 March, we leave by automatic operation of law, whether or not any agreement is in place.

Negotiation of the withdrawal agreement, and its form, is not prescribed in Art.50. There is no bar to the parties agreeing whatever they like; it’s a new agreement.

If there were a genuine legal point in issue, we would not have a right to enforce it because we would have ceded from the jurisdiction of the EU.

So in practice the point made is futile. It doesn’t look like it’ll have any bearing on negotiations and doesn’t give a any practical rights to enforce.

I think you're missing the point on the above. Article 50 doesn't require any agreement in order to leave, in that you're correct. What the backstop is, however, is not a transitional link to something else but which is permanent unless the parties agree to replace it with something else - ergo it is in itself a new agreement, an international treaty or agreement in effect.

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.

I also think you're incorrect on your point regarding the ECJ. If the backstop is triggered the ECJ is stipulated in the withdrawal agreement not to be able to decide on disputes between the EU and UK (that is the job of the arbitration panel) but the above argument refers to the existence of an international treaty and whether such treaty was formalised in accordance with Article 218(11) TFEU. That is a point of EU law and an interpretative decision on the provisions of the treaties, in respect of which the ECJ would retain jurisdiction.

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).

This still going on then yeah?

TBH the most annoyed big thing about brexit is everyone on the news saying it as breggzit instead of just like exit with a br in front.

GG. wrote: Thu Feb 07, 2019 10:18 am 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?

JLv3.0 wrote: Thu Feb 07, 2019 10:51 am This still going on then yeah?

Yep but 2 lawyers with opposing views are now discussing it...

Expect a conclusion imminently...

End of this page, max.

DeskJockey wrote: Thu Feb 07, 2019 11:01 am

GG. wrote: Thu Feb 07, 2019 10:18 am 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'

integrale_evo wrote: Thu Feb 07, 2019 10:58 am TBH the most annoyed big thing about brexit is everyone on the news saying it as breggzit instead of just like exit with a br in front.

So much this. Eggs-traordinarily irritating.