The European Union is essentially a community of law. It is certainly more than that, of course: it is also a community of values, based on a shared history (shared wars are also shared history) and, at least for those supporting it, a shared project.
In fact, much of the discussion in advance of the UK referendum and the essential rationale beyond the voters’ decision was related to these immaterial, political and often emotional components of the European project. Law was left out of the debate, as a nuisance sometimes presented by contemptible ‘experts’, who should have no place interfering with the democratic debate.
However, as the fog is lifting, the complexities of an intertwined European legal framework quickly re-emerge with the strength of a cork submerged by force. And many discover a United Kingdom (and, in a way, each one of its citizens) linked to rest of the Union, its institutions, and its other citizens by a highly sophisticated legal fabric knitted together for more than 40 years. Many are now realizing that the EU is obviously not some sort of country club where you can cancel your membership to then try to negotiate access to the bridge playing room or the swimming pool on your own terms.
From chemical products safety regulation to industrial standards; from the right to benefit from a loan at the European Investment Bank to cross-border protection of family related maintenance obligations; from the common recognition and enforcement of trademarks (and soon patents) to the free movement of workers; from equal access to public procurement across the continent to airport slots and legal burdens to unload containers at an EU port; from free ‘passporting’ of financial services to the right of selling motorbikes without customs duties across the internal market. Each of these issues, and hundreds of others, is not the result of a political handshake behind closed doors, but the effect of EU law, as implemented by a legal and judiciary system, which includes the European Court of Justice at its vertex.
Brexit requires unravelling this framework.
As it is known, this unprecedented process can only start once the decision to leave has been officially communicated by the UK government to the European Council. After that, a negotiation with a fixed deadline of two years will begin; a negotiation which technically will only be authorized to deal with the ordained demolition of the current legal construction supporting the existing UK-EU relationship.
Demolishing such a building will require cutting cables and connections, closing currently open doors and access routes, allocating common infrastructure, and apportioning costs of such an exercise. Whilst this process will be difficult and emotionally painful on occasions, it is feasible. However, it cannot happen in isolation. It must be managed whilst at the same time taking into consideration at least the basic plans of the new legal building intended to replace the old one. The UK does not appear to want to alienate itself completely from the EU. Great Britain is not moving to somewhere in the Pacific: it will remain geographically and culturally within Europe. A new relationship will be negotiated with the Union and its remaining members, who may use this opportunity to further strengthen their integration in some areas. The negotiating parties will fight around a table to protect their political objectives, their social and economic interests and the rights of their citizens.
At this time we do not know if such a new legal building will be inspired by the one hosting the Norwegian neighbours (it was conceived for a smaller occupant), or the Swiss one (nobody likes it really), or perhaps it will emerge from creative and completely new legal drawings. But if legal security is to be preserved, the task ahead is colossal: in many ways it will be the equivalent to renovating an airplane in the middle of a flight. There is a lot of legal work ahead, both in the UK and in the EU. This includes those directly involved, those monitoring the process and, eventually, those who want to ensure that their needs or those of their clients are given due consideration during in this extraordinary transition.
