On 1 January 2021, the divorce between the United Kingdom and the European Union became effective. Where do we stand one year later?
The Spanish journal La Ley-Unión Europea chose this topic to celebrate its number 100 issue, published last February. Under the title “La Unión Europea tras el primer año del brexit” (The European Union one year after Brexit), this monograph gathers the analysis of almost 40 reputed Spanish law professors and professionals.
It is therefore marked by the wide range of subjects covered, all pertaining to legal areas affected by the withdrawal: transport, the world of business, international cooperation against tax fraud, VAT, social security of temporarily posted workers, environmental policies, intellectual property or cybersecurity…, and, of course, cross-border civil and commercial matters.
A timely topic, well chosen for a well-deserved celebration; and a widely shared conclusion to my question above. In a nutshell: first, although Brexit has by no means gone unnoticed (my experience: buy now a scientific book, have it shipped from the UK, and look at the custom fees), in many respects its consequences are still far from being ascertainable. Second, as regards legal production in areas not regulated by the Withdrawal Agreement, there is not much to report.
International cooperation in civil and commercial matters has undergone a substantial transformation since the UK left the European Union. Nonetheless, as Sixto Sánchez Lorenzo points out, to this day the practical impact of Brexit in cross-border relationships looks rather limited. At the same time, the lack, in the negotiating process, of a serious treatment of the issues raised by the breaking off of judicial cooperation in civil matters foretells a future scenario of “conventional patches and legal poultices” (my translation of the, most probably, non-translatable expression of the author: “remiendos convencionales y cataplasmas jurídicas”). The Supreme Court’s magistrate Juan María Díaz Fraile confirms, listing in detail EU instruments no longer applicable in the relations UK/EU, together with their replacements: international conventions or national law, as the case may be.
Further contributions provide illustrations in line with Professor Lorenzo’s views, mapping the muddled legal landscape academics have described and deplored since June 2016. No one can claim lack of knowledge of the risks, for cross-border commercial and personal relationships, of a Brexit without some kind of cooperation agreement. To no avail. Nothing has happened during 2021 to put a remedy, though it would be wrong to pretend nothing has happened: as we know, the “Lugano” way is over.
In terms of legal certainty, and for obvious reasons, the status quo post-Brexit appear at first sight less desperate where an already existing multilateral convention fills the gap. That is why Ángel Espiniella Menéndez describes post-Brexit cross-border insolvency as a “leap in the dark”, and regrets the absence of an international convention to make up for the loss of the European Insolvency Regulation.
But, in fact, the existence of conventions is unlikely to suffice. In relation to choice of court agreements, Pedro de Miguel Asensio recalls that the 2005 Hague Convention is binding on the EU and the UK. Nonetheless, he immediately notices the shortcomings of the instrument when compared to the Brussels Regulations. Similarly, Pilar Jiménez Blanco states: “Brexit has weakened the effectiveness of the choice of the British courts. Whether the practical evolution of the 2005 Hague Convention will compensate for this weakening is uncertain but doubtful, due to the very limitations of the convention” (my translation). In the field of family law, Santiago Álvarez says, referring to Regulation 2201/2003: “Its void can hardly be filled by the 1980 Hague Convention on International Child Abduction and the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children, which also bind all EU Member States. This change, despite some peculiar, very peculiar, opinions (…), is a step backwards, especially with regard to the illicit transfer or retention of a minor. The system of the Regulation is simply better than the one of the Convention” (my translation). Only in relation to the law applicable to contractual and non-contractual obligations is the impact of Brexit less harsh, according to Manuel Penadés Fons: conflict of law rules can operate unilaterally and universally; the Rome I and Rome II Regulations have “remained” in the UK through the European Union (Withdrawal) Act and the (EU Exit) Regulations 2019 No. 834.
While the outcome of the analysis conducted and published may deceive, the effort made by the authors is by no means worthless. The threat of Brexit kept all us busy; so did the Withdrawal Agreement. Now we are “there”; the challenge is following up, looking in as much as possible at the reactions of all sides (EU, the UK – England and Wales or Scotland-, the single Member States) .
The special issue of La Ley-Unión Europea is preceded by an editorial by Professor Fernández Rozas, editor-in chief almost from the foundation. To all those who can read Spanish, I recommend joining him in his journey along the thirty-seven years of the journal: the same period Spain has been a EU Member State. With his distinctive style, Professor Rozas presents the history and evolution of the periodical in parallel to the most relevant developments of the European Communities, later the Union. To my mind, a piece of specific interest, in particular, to the younger generations of Spanish academics.
La Ley-Unión Europea is nowadays a well-established journal, characterized by a rare combination: a quickness of reaction to the legal developments in the European Union (something that only monthly monthlies can achieve), which is not detrimental to the quality of the contributions. Congratulations, Professor Rozas; go for the next hundred issues.