Tuesday , November 13 2018
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UK Contests European Court of Justice Case on Article 50 Withdrawal, Averring No Way Will It Back Out of Brexit

Summary:
Wellie, for those of you who were hoping that the UK might wake up from it derangement,1 channel its inner Emily Litella, and say “Never mind” to Brexit, the Government has dug itself in deeper on its current plans. Some readers had pointed hopefully to a case lodged at the European Court of Justice by the Inner House of the Court of Session in Scotland on whether the UK could unilaterally withdraw its Article 50 notice. We were at a loss to understand how this case would be helpful to the Remain camp, since the EU has all but said it would let the UK back out of Brexit up to the very last moment. But for that to happen, the UK has to ask, and we didn’t see that happening. This reading was confirmed by a policy paper published yesterday on the case, Wightman and Others v Secretary of

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Wellie, for those of you who were hoping that the UK might wake up from it derangement,1 channel its inner Emily Litella, and say “Never mind” to Brexit, the Government has dug itself in deeper on its current plans.

Some readers had pointed hopefully to a case lodged at the European Court of Justice by the Inner House of the Court of Session in Scotland on whether the UK could unilaterally withdraw its Article 50 notice. We were at a loss to understand how this case would be helpful to the Remain camp, since the EU has all but said it would let the UK back out of Brexit up to the very last moment. But for that to happen, the UK has to ask, and we didn’t see that happening.

This reading was confirmed by a policy paper published yesterday on the case, Wightman and Others v Secretary of State for Exiting the European Union. I infer that this paper summarizes the arguments that the UK is making before the ECJ. Key section:

The United Kingdom Government contests the admissibility of these Questions which amount on any view to a request for an “advisory opinion”, on the basis that the CJEU has long refused for very good reasons (a) to answer hypothetical questions; or (b) to provide advisory opinions.

Any true dispute about the meaning of Article 50 (which is a provision operating on the inter-state plane) would have to be between the UK and the remaining EU Member States (EU27). The Questions are hypothetical for two very simple reasons. First, the United Kingdom Government does not intend to revoke the Notice it has given (following the passing of the European Union (Notification of Withdrawal) Act 2017 by Parliament) and such revocation is simply not in any sense meaningfully in prospect. Second, the reaction of the EU27 and EU institutions to any such imagined revocation is unknown. So, even were the EU27 to take the view that their consent was required, they might agree to it as proposed in any event. This means that the terms of any “dispute” are theoretical without the full facts and context of: (a) a hypothetical revocation being known; and (b) the reaction of the EU27 and EU institutions to that particular hypothetical revocation being clear…

The Treaties make provision for the CJEU to provide advisory opinions, but only in strictly limited cases: the opinion must concern the legality of a proposed international agreement; and the opinion must be sought by an EU Member State or institution, rather than a private person. To allow national proceedings to be used as a route to circumvent these limitations would be a misuse of the preliminary reference procedure.

So full speed ahead!

On a different front, some bad news for those who thought a trade deal with the US could make up for the dampening effect of reduced exports to the EU. Auto parts are one of the UK’s major export sectors. Readers like vlade had already pooh-poohed the idea that the UK would be able to make progress in selling more car inputs to US automakers (ie, they’d presumably already have been trying for decades; an increased sense of urgency would not be likely to yield better results).

Politico this evening describes that EU officials are concerned that Trump plans to force European carmakers to shift more high-end production to the US:

Brussels fears U.S. President Donald Trump is out to poach the most valuable part of the European auto sector: the manufacturing of engine components, from electrical systems to fuel injection pumps.

Europe’s big car exporters such as Germany, Spain and the Czech Republic are looking on with horror as Washington’s trade negotiators seek to bring in a new points-based system within car quotas that rewards foreign carmakers for making more parts on American soil.

Looking at the way Trump is seeking to roll out quota deals with Canada and Mexico, it has become increasingly clear to EU trade officials that the U.S. strategy is to snatch top-end auto manufacturing away from Latin America, Asia and Europe and bring it to the U.S.

The American plan is playing especially badly in Germany, heartland of the EU motor industry. While big German carmakers assemble vehicles in the U.S. and Mexico, many high value-added components are still made in German factories.

One of the big impediments to the US bringing manufacturing back to the US is the loss of skills, not so much factory floor level but of supervisory and managerial personnel. Forcing multinationals to move their experienced employees to the US is one way to solve this problem.

Also, if you have a strong enough stomach, you must read a leak to the BBC, In full: The notes of apparent plan to sell Brexit deal. Reuters reports that No. 10 denied it:

The misspelling and childish language in this document should be enough to make clear it doesn’t represent the government’s thinking. You would expect the government to have plans for all situations — to be clear, this isn’t one of them.

In fact, the Government’s own Brexit papers have famously had typos, so an internal memo not being polished isn’t the most credible basis for a denial. In addition, it reads like conventional marketing blather. So it’s not nuts to think that this was indeed a plan that was under consideration. And in any event, the plan it set forth has been trumped by events, since the Cabinet did not review a new deal on Tuesday as planned. The Prime Minister has apparently told them to be on call for a special session later this week. Needless to say, any slippage on an already very tight schedule does not bode well for having an emergency EU Council summit later this month.

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1 We are not saying Brexit was intrinsically a bad idea. However, for it not to produce tremendous economic and legal dislocation, as well as a permanent reduction in the standard of living of UK citizens, the Government would have had to undertaken a war-level mobilization of resources and expertise, as well as engage in industrial planning, to which Tories are allergic. The UK even now seems to have no clue as to what it means to be in the Single Market, and what adaptations it need to make to function outside it.

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