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In its 45 years of existence, the European Law Review has had a policy of not publishing special issues: rather, each issue has come together organically, providing a snapshot of the most pressing and diverse European legal issues of the day. We, the editors of the Review, do not think that this policy should change, but that very special circumstances justify making an exception to it. This issue is, for the first time in our history, a special one, with all contributions in the Articles section focusing on Brexit.
The UK is no longer a member of the European Union. Its departure, at the end of January 2020, was already the focus of the Review’s past editorial. We felt that the historic significance of this event, and of the process it unleashed, deserved and justified an exceptional special issue, full of equally exceptional contributions. We hope that the thoughtful analysis provided by leading EU scholars will serve to mark this moment and to illuminate the choices ahead.
The section starts with the latest of Paul Craig’s by-now-classic “Brexit as drama” pieces, which spans the process and negotiations leading up to the Withdrawal Act and the Political Declaration, in all their twists and turns. This is, of course, only the first part of the endgame in this unfolding drama, as the future relationship between the UK and the EU—and thus the true effects of Brexit—remain unknown at this point. Alan Dashwood then follows with an incisive analysis of the Withdrawal Agreement and, in particular, of its common provisions, governance, and dispute settlement mechanism. The rights of citizens under the Withdrawal Agreement are the focus of Eleanor Spaventa’s insightful critique. For his part, Kenneth Armstrong turns to the future relationship between the UK and the EU, and the question of how to reconcile both sides’ regulatory autonomy with their aspirations for an ambitious economic relationship. Stephen Weatherill tackles the conflict between the UK’s ambition to enjoy regulatory autonomy in shaping its trade policy and the intention to maintain soft borders between Northern Ireland/Ireland, and Northern Ireland/Great Britain. He argues that hard choices had to be made in the relevant Protocol to the Withdrawal Agreement, with the soft border between Northern Ireland and Great Britain, and thus the UK internal market, emerging as losers. Finally, Marise Cremona examines how the Withdrawal Agreement handles the delicate task of disentangling the UK from the EU’s external acquis and, in particular, its international agreements.
The analysis in this issue covers, then, the most essential aspects of the Withdrawal Agreement, as well as some of the central questions regarding the future relationship between the EU and the UK. The latter, though, remains the big unknown. Following the UK’s departure, the clock is ticking again. The transition period comes to an end on 31 December 2020. Both sides have until then to negotiate and agree on their future relationship, with a free trade agreement at its core. Needless to say, time is of the essence. Yet in the weeks following the UK’s departure it quickly became clear that this would not be a swift and affable negotiation between neighbours. Both the EU and the UK have made their negotiating mandates, and their different starting points, public. The EU put a strong emphasis on a level playing field and, crucially, proposed a “package deal” or single governance framework—a robust system to ensure compliance and settle disputes—covering not just trade, but also fisheries and other areas of co-operation such as security and defence (...)
